Parks v. Board of Com'rs of Wyandotte County

• Decision Date: 16 May 1894
• Docket Number: 6,766,6864.
• Citation: 61 F. 436
• Parties: PARKS v. BOARD OF COM'RS OF WYANDOTTE COUNTY. FIRST NAT. BANK OF LANSDALE v. SAME.
• Court: U.S. District Court — District of Kansas

61 F. 436

PARKS v. BOARD OF COM'RS OF WYANDOTTE COUNTY.

FIRST NAT. BANK OF LANSDALE v. SAME.

Nos. 6,766, 6864.

United States Circuit Court, D. Kansas, First Division.

May 16, 1894

Buchan Freeman & Porter, for plaintiffs.

McGrew & Watson, for defendant.

WILLIAMS District Judge.

The bills in these causes seek to recover against the county of Wyandotte upon instruments in writing executed by road commissioners appointed by the county commissioners under an act of the legislature of the state of Kansas entitled 'An act for the improvement of county roads' (Acts 1887, c. 214). The county commissioners filed answers to the bills, setting up the unconstitutionality of the act, and denying that the persons who signed the instruments had any authority in law to execute them. The complainants demurrer to the answers. The act provides that whenever a majority of the resident landowners within one-half mile on either side of any regularly laid-out road within the terminal points mentioned in the petition shall petition to the board of county commissioners of any county for the improvement of a road it shall be the duty of the county commissioners to appoint three road commissioners, resident landowners of the county, to take charge of the improvement. In payment for work done or materials furnished the act authorized these road commissioners to issue certificates bearing interest at the rate of 7 per cent. One-third of the expense of the improvement was to be paid out of the general county fund and two-thirds to be assessed by these road commissioners against the lands in the district, according to the benefits. By the terms of the act, a few landowners along any road might set in motion the machinery of taxation, and tax the whole county; and at the same time the act delegated to these road commissioners the power to assess the lands of the district. Local assessments are an exercise of the taxing power. Cooley, Tax'n, 623, 624. The rule that legislative authority cannot be delegated applies to local assessments the same as to other taxes. Id. 655.

Does the constitution of the state of Kansas authorize the legislature to delegate the power of taxation either to the signers of these petitions or to these road commissioners? Can a tax be arbitrarily forced upon the taxpayers of a county, either by individuals or by officials in whose appointment they have no voice? The power of taxation is a power inherent in all governments. In a constitutional government, the people, by the constitution, confer it on the legislature. It is one of the highest attributes of sovereignty. It includes the power to destroy. It appropriates the property and labor of the people taxed. unrestrained power of taxation necessarily leads to tyranny and despotism. Hence, in all free governments, the power to tax must be limited to the necessities for the purposes of government, and the agencies for local taxation should be fixed and their powers limited by organic law, and they should be so selected as to be directly answerable for their official acts to their local constituencies or districts to be taxed. If they act corruptly, those directly interested have no voice in their appointment, or power to remove them, they have no means of correcting their abuses. No other rule can secure those to be taxed from oppression and fraud on the part of the taxing officers. In McCulloch v. Maryland, 4 Wheat. 428, Marshall, C. J., said:

'The only security against the abuse of this power (the taxing power) is found in the structure of our government itself. In imposing a tax the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation.'

This reasoning applies with equal force to all kinds of taxation and has been applied as well to local assessments or improvement districts as to taxes levied in local, political, and municipal corporations. Wilcox v. Paddock, 65 Mich. 23, 31 N.W. 609; Harward v. Drain Co., 51 Ill. 130; People v. Hurlbut, 24 Mich.88-108; People v. Township of Springwells, 25 Mich. 153; Board of Park Com'rs v. Common Council of Detroit, 28 Mich. 228; Schultes v. Eberly, 82 Ala. 242, 2 So. 345; Pope v. Phifer, 3 Heisk. 698, 699. Self-taxation, or taxation by officers chosen by or answerable to those directly interested in the district to be taxed, is inseparable from that protection of the right of property that is either expressly or impliedly guarantied by all written constitutions, under our system of government. Of all the powers of government the one most liable to abuse is the power of taxation. If placed in hands irresponsible to the people of the district to be taxed, its abuse is a mere question of time. If taxes may be forced on the people of a whole county, arbitrarily, by a few people signing a petition, it is plain that the people of the county, being the district to be taxed, have no voice in or control over the tax. There is no limit to the cost of these improvements, and the taxpayer is absolutely without means to check or control abuses that naturally follow arbitrary and irresponsible power over the property of others. The act is a plain violation of the principle of self-taxation, and a clear invasion of the right of property. The people, by the constitution, did not authorize the legislature to so jeopardize the right of property. The legislature is not the fountain-- not the source-- of power. Under our system of government the legislature can exercise only such powers as the people have delegated to that body, either expressly or by necessary implication, by the constitution. All rights not so delegated are retained by the people. The right to life, liberty, and property is among the inherent and inalienable rights that the people did not commit to the legislature. Constitutions are adopted and governments administered for the protection, and not for the destruction, of these reserved rights of the people. People v. Morris, 13 Wend. 328; 1 Blackw.Tax Titles, §§ 15, 16. Illegal or oppressive taxation is destructive of the right of property, and is not government, under the constitution; but is misgovernment. 'We suppose it will be conceded by every one that the legislature have no inherent power of any...