State ex rel. Attorney Gen. v. Comm'rs of Douglas Co.

• Decision Date: 06 January 1886
• Citation: 26 N.W. 378,18 Neb. 601
• Parties: STATE EX REL. ATTORNEY GENERAL v. COMMISSIONERS OF DOUGLAS CO.
• Court: Nebraska Supreme Court

18 Neb. 601

26 N.W. 378

STATE EX REL. ATTORNEY GENERAL

v.COMMISSIONERS OF DOUGLAS CO.

Supreme Court of Nebraska.

Filed January 6, 1886.

Mandamus.

MAXWELL, C. J., dissents.William Leese, Atty. Gen., and T. M. Marquet, for relator.

John C. Cowin, for respondent.

REESE, J.

The questions involved in this case are of great importance to the state, and to the people of the several counties, as they involve, among others, the question of the power of the legislature to impose upon the people of the several counties the expense of the maintenance of insane persons at the state hospital, in addition to the general state tax levied for the purpose of maintaining this institution. While we have carefully investigated all the questions presented, yet, for want of sufficient time at our disposal to discuss each one with that degree of care which it seems to merit, we must be content with a very brief statement of our conclusions, without any elaboration.

From the agreed and stipulated facts, it appears that the amount of tax levied by the state authorities has been sufficient to maintain the hospital, paying all the expense of board, etc., of all the patients, so that it has not been a matter of absolute necessity for its maintenance that any further burdens should be imposed upon counties having patients there, under the provisions of section 47 of chapter 40 of the Compiled Statutes. It must be borne in mind that the question is simply one of the power of the legislature to impose the tax. All suggestions as to its expediency must be banished from the case. The legislative department, being one of the co-ordinate branches of the government of the state, cannot be controlled by the courts, so long as it acts within its jurisdiction and the limitations of the constitution. In fact, within those limits, it is the supreme and controlling power of the state, and both the executive and judicial must yield a willing obedience to its mandates.

It is insisted that, as a levy of tax has been regularly made for the maintenance of the hospital, it is not within the power of the legislature to again tax the people of the several counties for the maintenance of the insane sent to it from such counties; that it is a double taxation, and, in effect, a confiscation of the property, of the citizen; and that all such taxation must necessarily be void. It must be conceded that if the tax is in excess of the power of the legislature, it is void, and if it is a double tax for the same purpose, it is in excess of the legislative power, and therefore void. While our judgment may not, and does not, approve the method adopted for the support of the hospital for the insane, and while it would seem that the burden is made unnecessarily heavy, yet, as we have suggested, the question of propriety is for the legislature.

By the statement of facts agreed upon, it appears that the tax imposed by the state at large is and has been sufficient for the support and maintenance of the hospital, and that, in addition thereto, each county is required to impose a tax sufficient to pay the expense of its patients who are there confined.

It is clearly within the power of the legislature to provide for the maintenance of the insane by general taxation of the state, and to relieve the several counties from the burden, except as they bear their proportion with the other counties of the state, or to require each county to maintain its own insane in hospitals provided by them, or to pay the expense of the maintenance of their insane in a hospital provided by the state. In this, each state has adopted the course which, to its legislature, has seemed most judicious; and we think it is clearly within the legislative power to provide by law and taxation, in the first instance, for the support of the insane by the state, and then require the counties, which otherwise would have to support the insane having a residence within their borders, to repay the state the amount thus expended. Any other view would leave the care of this, the most unfortunate, class of our citizens to the will and caprice of the several boards of the several counties in the state, which would result in anything but a harmonious system of caring for them. We have carefully examined all the authorities cited by the respondent, and are unable to arrive at any other conclusion. This seems to be the policy of our state, and we think the right to adopt such policy cannot be successfully questioned. The wrong, if any exists, seems to be an error of judgment in the amount of tax necessary to be levied by the state to insure the carrying out of the purpose of the laws. This may be, in part, the result of oversight, or it may have become necessary by the failure of the several counties to collect and pay over the amounts required by the section (49) above referred to; perhaps the latter. Again, there are many patients whose residence cannot be ascertained, and for whom provision must be made. It would be clearly unjust to require the county in which the insane person is apprehended to pay the expense of his maintenance. This must be done, if at all, by state taxation. It is very properly provided by section 48, Comp. St., that the estates and relatives of insane persons, when able to do so, shall reimburse the county for the money paid, thereby making the counties the losers only to the extent of money paid out for those who are unable to support themselves.

Other questions are presented by the very able brief of counsel for the relator, which require attention, and will be briefly noticed. It is claimed that the tax required to be levied by section 47 is a state tax, and therefore the county has no authority to make the levy; and, further, that such levy would be a violation of the fundamental requirements that taxation shall be uniform throughout the state. While it is true that the hospital for the insane is, as argued by the respondents, a state institution, yet, as we have seen, the maintenance of the insane is not necessarily a state burden, and therefore it is within the power of the legislature to require that the tax may be levied and collected by each county, for the purpose of reimbursing the state; and we think it is also within the power of the legislature to require the tax so levied to be placed with other taxes going to the state, in order that it may be withdrawn from the control of the county officers, and set apart, at the outset, to the use for which it is levied. This being true, the requirement of uniformity is not violated, as the tax is uniform throughout the taxing district in which it is levied. This is all that is required.

Again, it is claimed that if the tax is a county tax, it is not competent for the legislature to make the levy; that such tax can only be imposed by county authority. This is true, but, by an examination of the law, it will appear that the tax is not levied by the state or its officers. The state auditor is required to notify the county clerk of each county the amount due from it to the state. The county is charged with the amount in gross. The proper estimate of the amount of tax necessary to pay the indebtedness is made by the county officers; and when the percentage of levy is ascertained by them, it is their duty to levy the tax, and place it against the property in the county. The tax is not levied by the state, but by the county, for the purpose of paying an indebtedness due the state, and ascertained by its officers.

The suggestion that the imposition of the tax provided for in section 47 is in violation of the fourteenth amendment of the constitution of the United States has, we think, been sufficiently noticed in the foregoing. There are no unequal exactions or burdens imposed by the section.

It is urged that, if the writ is allowed, as prayed for in this case, and the other counties of the state are required to pay the amounts charged to them, it will enforce the payment of a large amount of money into the state treasury which is not necessary, and has virtually already been paid in the form of taxation under the general tax levy of the state, as many other counties, like the relator, have failed to levy the tax, or, if levied and collected, to pay the same to the state treasurer. This fact may account for the high rate of taxation made necessary for the support of the hospital for the insane. If the tax had been levied, and the money paid over by the county treasurer as required by law, it would have materially affected the levy by the state board of equalization; for we must presume they were governed by the actual necessities of the case, and by their official oaths. Section 75 of the revenue law (chapter 77, Comp. St.) provides that the rate of general state tax shall be sufficient to realize the amount necessary to meet appropriations. It cannot be supposed that the state board of equalization will impose an unjust or oppressive tax, or that they would levy the full amount necessary to meet all the expenses of the state institutions, if a large amount of money was in the treasury to the credit of the fund from which the appropriation was made; but, in the language of the statute, an “amount necessary to meet the appropriation” would be the full measure of the amount. An unreasonable excess could and should be controlled by the courts. We fully agree with counsel that it is not in accordance with the spirit of the institutions of this country that large amounts of money should be wrung from the people by taxation and placed in the public treasuries, for such a condition is universally followed by extravagance in public expenditures. But this must, in the first instance at least, be left to the wisdom of the proper department of the government.

By the stipulation of the facts it is shown that a number of patients are and have been in the hospital, the charges of whose keeping are made to Douglas county, while the records show...