Idaho County v. Fenn Highway District

• Citation: 253 P. 377,43 Idaho 233
• Parties: IDAHO COUNTY, Respondent, v. FENN HIGHWAY DISTRICT, Appellant
• Decision Date: 30 October 1926
• Court: United States State Supreme Court of Idaho

253 P. 377

43 Idaho 233

IDAHO COUNTY, Respondent, v. FENN HIGHWAY DISTRICT, Appellant

Supreme Court of Idaho

October 30, 1926

TAXATION - HIGHWAY DISTRICTS - COUNTIES - CONSTITUTIONAL LAW-COUNTY CANNOT IMPOSE TAX ON HIGHWAY DISTRICT.

1. Legislature may impose burdens on counties, cities, towns or highway districts for public purposes, even without their consent, unless prohibited by constitution.

2. Whether legislative act constitutes taking without due process, in violation of Const., U.S. , Amends. 5, 14, and Const. Idaho, art. 1, sec. 13, depends on law's compliance with other provisions of the constitution.

3. C S., sec. 1508, as amended by Laws 1923, chap. 77, authorizing county to compel road district to repair roads, is not in violation of Const., art. 3, sec. 19, subds. 8, 10, 11, since it operates on all persons and subject matters in like situation.

4. Highway district, organized under C. S., secs. 1507, 1510, 1532, 1533, 1536, is separate taxing unit within Const., art 7, sec. 6, prohibiting legislature imposing taxes for it either directly or indirectly through county in which it is situated.

5. Legislature cannot give county power to levy taxes solely in highway district, not uniform throughout county.

6. C S., sec. 1508, as amended by Laws 1923, chap. 77, relative to county requiring road district to repair roads, violates Const., art. 7, secs. 5, 6, as authorizing county to impose tax on highway district.

APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. Miles S. Johnson, Judge.

Action to compel defendant highway district to repair a highway. Judgment for plaintiff. Reversed and remanded.

Judgment reversed, with directions. Costs to appellant. Petition for rehearing denied.

James F. Ailshie, for Appellant.

Chapter 77, 1923 Sess. Laws, is unconstitutional and void in so far as it attempts to authorize a county to incur indebtedness against a highway district and to levy and collect taxes of the property of the district for the payment of such debt, against the will and without the consent of the highway district and its commissioners. (Const., secs. 5 and 6, art. 7; paragraphs 8, 10 and 11 of sec. 19, art. 3; secs. 2, 3 and 4, art. 8; Federal Const., 5th and 14th Amendments; State v. Nelson, 36 Idaho 713, 213 P. 358; Campbell Co. v. City of Newport, 174 Ky. 712, 193 S.W. 1, L. R. A. 1917D, 791; Fayette County v. Well, 195 Ky. 608, 243 S.W. 4; People v. Lynch, 51 Cal. 15, 21 Am. Rep. 677; People v. Mayor of Chicago, 51 Ill. 17, 2 Am. Rep. 278; People ex rel. Rodgers v. Coler, 166 N.Y. 1, 82 Am. St. 605, 59 N.E. 716, 52 L. R. A. 814; Conlin v. San Francisco, 114 Cal. 404, 46 P. 279, 33 L. R. A. 752; Graham v. Fresno, 151 Cal. 465, 91 P. 147; Hutchinson v. Ozark Land Co., 57 Ark. 554, 38 Am. St. 258, 22 S.W. 173; Board of Commrs. v. State, 155 Ind. 604, 58 N.E. 1037; Leddy v. People, 59 Colo. 120, 147 P. 365; Gem Irr. Dist. v. Van Deusen, 31 Idaho 779, 176 P. 887.)

The statute in question and the judgment entered thereunder is an attempt to deprive a municipal corporation, organized under the general laws, of its fundamental and constitutional right of local self-government, and deprives the people who are required to pay the tax of any voice in determining the amount or character of or necessity for such a tax. (Campbell Co. v. City of Newport, supra. See authorities cited under point 1 above.)

The constitution prohibits the legislature from imposing taxes for any purpose except state purposes and such tax when imposed must be uniform throughout the state. (Const., art. 7, sec. 6; Campbell Co. v. City of Newport, supra; Hutchinson v. Ozark Land Co., supra; State v. Nelson, supra; People v. Lynch, supra; 26 R. C. L., secs. 51, 52 and 220.)

Under the constitution, all taxes must be "uniform upon the same class of subjects within the territorial limits of the authority levying the tax," and the county cannot legally levy a tax upon any of the political or corporate subdivisions thereof which does not extend alike throughout the territorial limits of the county. (Const., art. 7, sec. 5. See authorities cited under point 3.)

The act in question has the effect of authorizing one municipal corporation to impose taxes upon another without its consent, and amounts to the collection of taxes from one municipality for the benefit of another, in violation of the state constitution, art. 8, secs. 2, 3, 4. (Atkinson v. Commissioners of Ada Co., 18 Idaho 282, 108 P. 1046, 28 L. R. A., N. S., 412; School Dist. No. 8 v. Twin Falls County Mut. Fire Ins. Co., 30 Idaho 400, 164 P. 1174; Gem Irr. Dist. v. Van Deusen, 31 Idaho 779, 176 P. 887.)

The powers and duties of highway districts are not governmental but are purely private and corporate and are exercised for the private and local benefit of the inhabitants thereof. (Boise City Development Co. v. Boise City, 30 Idaho 675, 167 P. 1032; Hettinger v. Good Roads District, 19 Idaho 313, 113 P. 721; City of Nampa v. Nampa & Meridian Irr. Dist., 19 Idaho 779, 115 P. 979; Youmans v. Thornton, 31 Idaho 10, 168 P. 1141; Powers v. Boise City, 22 Idaho 286, 125 P. 194; State v. Heffernan, 243 Mo. 442, 148 S.W. 90; Bieling v. City of Brooklyn, 120 N.Y. 98, 24 N.E. 389.)

A. H. Conner, Attorney General, F. E. Fogg, Prosecuting Attorney, and W. C. Arnold, for Respondent.

The construction, maintenance and repair of highways is strictly a governmental state function over which the legislature at all times has full plenary control. (Milwaukee County v. Halsey, 149 Wis. 82, 136 N.W. 139; Jensen v. Supervisors, 47 Wis. 298, 2 N.W. 320; People v. Supervisors, 20 Mich. 95; People v. Kent County, 34 Mich. 62.)

Highway districts are not municipal corporations analogous to cities and villages. They may, within certain restrictions, levy taxes, but such taxes are also in turn strictly limited to purposes relating solely to the carrying out of the state function. (C. S., secs. 3794, 3939, 3948, 3949, 3960, 3962 and 3976; Eikenberry v. Township of Bazaar, 22 Kan. 556, 31 Am. Rep. 198; 4 Dillon on Municipal Corporations, 1643; James v. Trustees of Wellston Tp., 18 Okla. 56, 11 Ann. Cas. 938, 90 P. 100, 13 L. R. A., N. S., 1219.)

The control of rural highways as distinguished from city streets and the levying of taxes therefor has never been included within the traditional doctrine of home rule, nor has the raising of taxes for such purposes ever been considered as open to the objection, that it amounts to taxation without representation. (Simon v. Northrup, 27 Ore. 487, 40 P. 560, 30 L. R. A. 171; Prince v. Crocker, 166 Mass. 347, 44 N.E. 446, 32 L. R. A. 610; Pumphrey v. Baltimore, 47 Md. 145, 28 Am. Rep. 446; People v. Flagg, 46 N.Y. 401; Senor v. Board of Commrs., 13 Wash. 48, 42 P. 552.)

TAYLOR, J. Wm. E. Lee, C. J., and Budge and Givens, JJ., concur.

OPINION

TAYLOR, J.

This is an appeal by the Fenn Highway District from a judgment rendered in an action brought by Idaho county to compel the district to comply with its demand and repair that portion of what is known as the Grave Creek Highway lying within the district, under the provisions of C. S., sec. 1508, as amended by Sess. Laws 1923; c. 77, p. 86. The district had refused to comply with the demand of the county, or "enter into an agreement" for the repair.

The judgment, in a manifest attempt to follow the provisions of C. S., sec. 1508, as amended, required the district to immediately repair the highway within the district, and provided that in case the district should refuse or neglect to comply with the judgment, the county was authorized and directed to act on behalf of the district and repair, or cause to be repaired, the highway, and that the cost and expense thereof be charged to the highway district and adjudged and declared a lien against all property assessed in the district, and, on the failure of the district to pay such costs and expenses, "that a tax be levied by the board of county commissioners of the said county of Idaho" against all the assessed property in the district "sufficient to produce the amount of the costs of such repair, charged or that may be so charged against the . . . . district," and be retained by the county and applied on such indebtedness. Although not material to this inquiry, we remark that the judgment to a considerable degree exceeds the extent of the judgment contemplated by the statute in incorporating therein alternatives to be exercised after "the rendering of the judgment."

The district, by demurrer, by answer, and by specifications of error as to the findings and judgment, attacks the constitutionality of the provisions of C. S., sec. 1508, as amended. Appellant contends that this action is an attempt to take property of the district "without due process of law and without affording defendant the equal protection of the law," in violation of the 5th and 14th amendments to the federal constitution, and section 13 of article 1 of the constitution of Idaho; and that the act "in so far as it attempts to justify the plaintiff in this proceeding," is "unconstitutional and void, and in conflict with paragraphs 8, 10 and 11 of section 19 of article 3, . . . . sections 5 and 6 of article 7, . . . . and sections 3 and 4 of article 8, of the state constitution, for the reasons: (a) That it is a special and local law . . . . ; (b) that it is an attempt (1) to levy and collect taxes by authority other than the authority of the taxing district," (2) "to duplicate taxation," (3) "to levy and impose taxes by one municipality and the authorities thereof on another and different municipality without the consent of the" latter, (4) "to impose a tax upon a municipal taxing district . . . . without the consent of the authorities . . . . to be taxed,"...