Stark v. McLaughlin

• Decision Date: 05 November 1927
• Docket Number: 5111
• Citation: 45 Idaho 112,261 P. 244
• Court: Idaho Supreme Court
• Parties: J. M. STARK and OSCAR MOBERLY, a Copartnership Doing Business as STARK & MOBERLY, Appellants, v. MARY C. MCLAUGHLIN, Treasurer and Ex-officio Tax Collector of Elmore County, State of Idaho, and SMITH PRAIRIE HIGHWAY DISTRICT, of Elmore County, Idaho, Respondents

261 P. 244

45 Idaho 112

J. M. STARK and OSCAR MOBERLY, a Copartnership Doing Business as STARK & MOBERLY, Appellants, v. MARY C. MCLAUGHLIN, Treasurer and Ex-officio Tax Collector of Elmore County, State of Idaho, and SMITH PRAIRIE HIGHWAY DISTRICT, of Elmore County, Idaho, Respondents

No. 5111

Supreme Court of Idaho

November 5, 1927

HIGHWAY DISTRICTS-TAXATION-CONSTITUTIONAL LAW-CONSTRUCTION OF DECISIONS.

1. Each case must be construed with reference to the circumstances thereof and the questions under consideration, and limited to those points of law raised by the record, considered by the court, and necessary to the determination of the case.

2. The conclusion reached by the court is its decision, while what is said is its opinion and reason for its decision, and is to be construed, if it reasonably can be, to support, and not refute, the decision and conclusion.

3. The inquiry, after portions of a state law have been declared by federal court to violate federal constitution, whether the remaining portions are sufficient in themselves, so that it cannot be said that the entire act fails, ordinarily presents no federal question, so that any decision thereon by the federal court is not binding on the state court.

4. Unless a court can say that it clearly appears that a statute with unconstitutional portions eliminated would not have been enacted, it should sustain the remaining portions.

5. The Highway District Law, under C. S., secs. 1490, 1492-1495, 1510, 1551, 1552, 1554, 1555, 3434, 3509, does not deprive an owner of property without due process of law or deny the equal protection of the law, either in the organization of a district or in the issuance of road and bridge bonds, with required provision for levy of taxes on all the property of the district for their payment; the organization of the district and also the issuance of bonds being determined by election on notice with right of appeal to the court.

APPEAL from the District Court of the Third Judicial District, for Elmore County. Hon. Hugh A. Baker, Judge.

Action to recover taxes paid under protest. Judgment for defendants. Affirmed.

Judgment affirmed. Costs to respondents. Petition for rehearing denied.

C. S Hunter, for Appellants.

Taxes levied and collected illegally may be recovered by the taxpayer upon notice to the tax collector that such taxes are regarded as illegal, the same paid under protest and that suit will be instituted to recover the amount so paid. (Sess Laws 1921, chap. 107, p. 249; Shoup v. Willis, 2 Idaho 120, 6 P. 124; Idaho Irr. Co. v. Lincoln Co., 28 Idaho 98, 152 P. 1058.)

A highway district attempted to be organized under the provisions of C. S., chap. 66, is a special assessment district. (Shoshone Highway Dist. v. Anderson, 22 Idaho 109, 125 P. 219; Strickfaden v. Greencreek Highway Dist., 42 Idaho 738, 49 A. L. R. 1057, 248 P. 456; Kimama High. Dist. v. Oregon Short Line R. Co., 298 F. 431; Oregon Short Line R. Co. v. Kimama Highway Dist., 287 F. 734; Browning v. Hooper, 269 U.S. 396, 46 S.Ct. 141, 70 L.Ed. 330.)

The provisions of chap. 66 relating to formation of highway districts are unconstitutional in that no provision is made for legislative determination of benefits to property within the proposed district, or as to the extent thereof, nor any opportunity afforded to property owners to protest the forming of the district. (Browning v. Hooper, supra; Village of Norwood v. Baker, 172 U.S. 269, 19 S.Ct 187, 43 L.Ed. 443; Fallbrook Irr. Dist. v. Bradley, 164 U.S. 112, 17 S.Ct. 56, 41 L.Ed. 369; Embree v. Kansas City Road Dist., 240 U.S. 242, 36 S.Ct. 317, 60 L.Ed. 624; Oregon Short Line R. Co. v. Clark County Highway Dist., 17 F.2d 125; Kimama Highway Dist. v. Oregon Short Line Ry. Co., 298 F. 431; Oregon Short Line Ry. Co. v. Kimama Highway Dist., 267 F. 734, 298 F. 431; Booth v. Groves, 43 Idaho 703, 255 P. 638.)

Sess. Laws 1927, chap. 5, is unconstitutional and in violation of sec. 1, art. 13 of the constitution of Idaho and the 14th amendment to the constitution of the United States. (See authorities above cited.)

Chapter 5, sec. 4, of Sess. Laws 1927, is repugnant to the constitution in that a debt of a highway district is attempted to be legalized which exceeds the constitutional limitations. (Dunbar v. Board of Commrs., 5 Idaho 407, 49 P. 409; Byrns v. Moscow, 21 Idaho 398, 121 P. 1034; Boise Dev. Co. v. Boise City, 26 Idaho 347, 143 P. 531; Allen v. Doumecq High. Dist., 33 Idaho 249, 192 P. 662.)

Sess. Laws 1927, chap. 5, is retroactive in character and prohibited by the constitution. (Const., art. 11, sec. 12; Evans v. City of Denver, 26 Colo. 193, 57 P. 696; Black on Constitutional Law, p. 758.)

Local and Special Laws of Idaho 1927, chap. 105, is a special and local act. (Mix v. Board of Commrs. of Nez Perce Co., 18 Idaho 695, 112 P. 215, 32 L. R. A., N. S., 534; Gillesby v. Board of Commrs., 17 Idaho 586, 107 P. 71; Jones v. Power County, 27 Idaho 656, 150 P. 35.)

Chapter 105 attempts to provide for the assessment and collection of taxes and the creation of liens on the property within the district in violation of the constitution. (Const., art. 3, sec. 19; Bannock County v. Bunting & Co., 4 Idaho 156, 37 P. 277; McNutt v. Lemhi County, 12 Idaho 63, 84 P. 1054; Boise Dev. Co. v. Boise City, supra.)

The defendant highway district has not had, nor does it now have, any existence either as a de facto or a de jure corporation. (Norton v. Shelby, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178; United States v. Royer, 268 U.S. 394, 45 S.Ct. 519, 69 L.Ed. 1011; 1 Words & Phrases, 2d series, p. 1210; 6 R. C. L., sec. 117, Constitutional Law; 7 R. C. L., sec. 43, Corporations; 7 McQuillin on Munic. Corp., p. 151; State v. Malcom, 39 Idaho 185, 226 P. 1083; Idaho County v. Fenn High. Dist., 43 Idaho 233, 253 P. 377; Brandenstein v. Hoke, 101 Cal. 131, 35 P. 562.)

Special Laws 1927, chap. 105, attempts to create a corporation in violation of the constitution. (Miller & Lux v. Board of Supervisors of Madera County, 189 Cal. 254, 208 P. 304; People v. Levee District No. 6, 131 Cal. 30, 63 P. 676; People v. Van Nuys Lighting Dist., 173 Cal. 792, Ann. Cas. 1918D, 265, 162 P. 97.)

R. W. Katerndahl, for Respondents.

It is permissible under the constitution, and as declared by the supreme court, to construct highways by general taxation by and through the scheme of the division of counties into a number of taxing districts with equalizing tax features providing for an equalization of highway tax burdens in proportion to the relative benefits received by adjacent taxing districts, for the general improvement and further creation and development of the public highways therein and of a system of public highways therein. (C. S., chap. 66, sec. 1508, as amended by Sess. Laws 1923, chap. 77, p. 86 Shoshone Highway Dist. v. Anderson, 22 Idaho 109, 125 P. 129.)

In every Idaho highway district there has existed at all times a de jure municipal corporate existence with full power to express a constitutional "assent" to the issuance of bonds, and with full constitutional power to issue the same, if, prior to such issuance, or subsequent thereto, there be a process of "notice and hearing" afforded, or if the legislature legislates with respect to those features requiring "notice and hearing" in such a way as to dispense constitutionally with the necessity thereof, viz., by constitutional curative legislation. (C. S., chap. 66; Imperial Water Co. v. Imperial County, 162 Cal. 14, 120 P. 780; Clapp v. Otoe County, 104 F. 473, 45 C. C. A. 579; Schneck v. City of Jeffersonville, 152 Ind. 204, 52 N.E. 212.)

The decision of the supreme court in the Archer county case indicates that that court would declare an Idaho highway district not a "local improvement" district within the meaning of that case. (Browning v. Hooper, 269 U.S. 396, 44 S.Ct. 141, 70 L.Ed. 330; McGilvery v. City of Lewiston, 13 Idaho 338, 90 P. 348; Byrns v. Moscow, 21 Idaho 398, 121 P. 1034; Elliott v. McCrea, 23 Idaho 524, 130 P. 785; Independent Highway Dist. v. Ada County, 24 Idaho 416, 134 P. 542.)

The Idaho law comprising the provisions of the highway district law and other statutes of the state, supplemented by the effect of supreme court rulings, afford to all "aggrieved" persons "notice" and an "opportunity" to be heard and to raise upon hearing all constitutional questions involved in the creation of the highway district and in the levy of any highway district tax, thus affording "due process of law." (Pioneer Irr. Dist. v. Walker, 20 Idaho 604, 119 P. 304; C. S., sec. 3434; Inland Co. v. Thompson, 11 Idaho 508, 114 Am. St. 274, 7 Ann. Cas. 862, 83 P. 935; First etc. Bank v. Washington Co., 17 Idaho 306, 105 P. 1053; Hagar v. Reclamation Dist., 111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 569; Northern P. Ry. v. Kootenai County, 19 Idaho 75, 112 P. 320.)

The constitution contains no inhibition against the creation of highway districts by special law. They may be created either under a "general law" or directly by "special law." No "vested" rights are violated in such creation and no question under the federal constitution is raised thereby. Creation of such taxing districts may be had by prospective special act or by proceedings under a general act operating prospectively; and "curative" legislation not being prohibited by the constitution, organization defects may be corrected or supplemented by curative or ratifying legislation, under the constitution. (Valley Farms Co. v. Westchester, 261 U.S. 155, 43 S.Ct. 261, 67 L.Ed. 585; Shoshone Highway Dist. v. Anderson, 22 Idaho 109, 125 P. 219; Strickfaden v. Greencreek Highway Dist., 42 Idaho 738, 49 A. L. R. 1057, 248 P. 457; Hill's Cases on Constitutional Law (1926), p. 645.)

It is not necessary in such curative legi...