State ex rel. The Attorney General v. The County Commissioners of Douglas County

• Decision Date: 06 January 1886
• Parties: THE STATE, EX REL. THE ATTORNEY GENERAL, v. THE COUNTY COMMISSIONERS OF DOUGLAS COUNTY
• Court: Nebraska Supreme Court

26 N.W. 378

18 Neb. 601

THE STATE, EX REL. THE ATTORNEY GENERAL, v. THE COUNTY COMMISSIONERS OF DOUGLAS COUNTY

Supreme Court of Nebraska

January 6, 1886

ORIGINAL application for mandamus to compel the board of county commissioners of Douglas county to allow the amount claimed to be due the state for the care and protection given to insane patients from that county. It was submitted to the court on the following agreed statement of facts:

"In this case it is stipulated and agreed by the relator and respondent, acting through their respective attorneys, Wm Leese, attorney general, for the state, and J. C. Cowin for the respondents; that it is true as matters of fact:

* * * *

"Second. There is no record or other evidence showing that the board of trustees of the insane hospital at any time fixed the sum to be paid per week for the board and care of patients. When the asylum burned down all records were destroyed, but the sum of $ 4.00 per week was charged and demanded by the hospital up to February 29th, 1880. On that day the board of public lands and buildings adopted the following resolution:

"Resolved That the secretary be and is hereby instructed to notify the auditor and superintendent for the hospital for insane that the board of public lands and buildings has reduced the price of board of patients at the hospital for insane to $ 3.00 per week, to take effect December 1st, 1879.

"A certified copy was served upon the superintendent and thereafter $ 3.00 a week was charged, to take effect December 1st, 1879.

"There was no other action taken by the board of public lands and buildings with respect to fixing the sum to be paid per week and $ 3.00 per week is charged and demanded by the hospital in accordance with said resolution for all patients in the hospital.

"Third. From the year 1873 to the year 1885, inclusive, the state board of equalization and the state officers in that behalf provided, in deciding upon and fixing the rate of the general state tax (based upon the appropriation made each year by the legislature, which included all expenses of insane, including board and care of patients) to be levied for each current year, included in the rate for general state tax each current year, a sufficient amount to meet all expenses and expenditures of whatever nature connected with the maintenance of the insane hospital, and including the cost of board and care of patients, as fixed and demanded according to the facts agreed in the foregoing statement No. 2, and such sum was levied for that purpose as a part of the general state taxes each year, and was collected and appropriated and used for defraying said expenses, including the board and care of all patients, and there is no deficiency in that regard. The respondent Douglas county paid said general state tax, which included said expenses.

"Fourth. In addition to the foregoing levy, the state auditor each year notified the county clerk of respondent county of the amount charged against the county according to the second paragraph of this statement of facts, and demanded that such amount be added to the general state tax, which already included such costs and expenses as stated in paragraph three hereof, and such amount was levied in Douglas county for 1873 to 1876, inclusive, as an insane hospital tax, and the amount paid by Douglas county under the last mentioned levy into the state treasury from November 30th, 1873, to the present time was $ 4,227.75 and no more. And the amount certified by the superintendent to the auditor, and by the auditor to the respondent from November 30th, 1873, until November 30th, 1876, was the amount of $ 7,035.33.

"Fifth. The rate of general state levy which included said insane hospital expenses was sufficient, exclusive of the tax and levy provided by section 47 of chapter 40 of the Compiled Statutes of Nebraska, to meet the appropriations made by the legislature for each year, which included all expenditures and expenses for the insane hospital, including the board and care of all patients.

"Sixth. It is further agreed that if the court shall finally determine that the county respondent is under obligations to levy a tax as provided by section 47, chapter 40, entitled 'Insane,' and shall further determine that the county respondent is entitled to be credited for the amount it has paid toward the support of the insane, by reason of the amount for the support of the insane being included in the general state tax according to paragraph three of this agreement and stipulation, and paid by the county and used in the support of the insane inmates in said hospital, then and in that case the case may be referred for the purpose of ascertaining the amount of such credit to which said county would be entitled."

William Leese, Attorney General, and T. M. Marquett, for the State.

The validity of the tax has been determined. B. & M. R. R. v. Cass County, 16 Neb. 137. Same v. Saunders County, Id., 125. The levy of the tax is directed by Laws 1885, Ch. 70. Neglect of county board for previous years no defense. State v. Franklin County, 35 Ohio St. 468. State v. Harris, 17 Id., 615. People v. Supervisors, 8 N.Y. 330. Same v. Same, 10 Wend. 366. The remedy is by mandamus. Clark v. Buffalo County, 6 Neb. 463. Elmore v. Zeigler, 52 Ala. 227. State v. Wilson, 17 Wis. 709.

J. C. Cowin, for respondents.

From the agreed statement of facts it will be seen that respondent is not resisting this writ to evade the payment of the expenses and costs of the board and care of the insane patients having legal settlement within its boundary, or any part of its just proportion of the expenses of the government. The state officers, thereunto authorized by law, themselves added to the general state tax all these expenses levied for these expenses, and the tax has been yearly collected by the county, paid into the state treasury, and used to defray such expenses. By this levy Douglas county has probably paid more than it would have paid under a levy made under section 47. So that Douglas county appears here to resist a new levy for a tax it has once paid and discharged in full. The great civil war, which put our constitution to the severest test, never in its most critical and trying period, when every means within constitutional authority were resorted to for the purpose of raising a revenue to carry on a gigantic war, never even then, or any time, subjected the constitution and the people to the test of a measure so monstrous as to require a tax to be twice paid, either by direction or indirection; and yet it is sought to be enforced in enlightened Nebraska, against citizens always willing to bear their just proportion of the burden of the government, and in a time of profound peace, and in the most summary proceeding. Such a proceeding is not taxation but confiscation. Excess of taxation is void. Cooley Cons. Lim., 644. B. & M. v. York County, 7 Neb. 487. Hammett v. Philadelphia, 65 Penn. State, 151. Referring to the constitution, Art. 5, § 19; Art. 9, §§ 1, 5, 6, 7, and Art. 3, § 19; Comp. Stat., chaps. 40, 83; Comp. Stat., Ch. 77, §§ 74, 75, 76, the respondents claim:

1. That the revenue provided for board and care of the insane is a "State Tax." Cooley Cons. Lim., 496. Murray v. Lehman, 61 Miss. 283. State v. Liedtke, 9 Neb. 468. Dundy v. Richardson Co., 8 Neb. 508.

2. As such it must be levied under Const., Art. 9, § 1. And see Turner v. Althaus, 6 Neb. 77. Clother v. Maher, 15 Id., 6. Covell v. Young, 11 Id., 511. Fletcher v. Oliver, 25 Ark. 289. People v. McCreery, 34 Cal. 432.

3. It is incompetent for the legislature to authorize a local tax for a general state purpose. Cooley Taxation, 104. Dorgan v. Boston, 12 Allen, 223. Hammett v. Philadelphia, 65 Penn. State, 146, 151.

4. The tax is illegal, for it is not competent for the legislature to impose a county tax for county purposes. Cornell v. People, 107 Ill. 372. Hasbrouck v. Milwaukee, 13 Wis. 42. Pope v. Phifer, 3 Heisk., 682.

5. The tax is a violation of the 14th amendment to the constitution of the United States. The revenue sought to be enforced taxes a part of the tax payers twice. Durkee v. Janesville, 28 Wis. 464. This tax would make a different rate for the general fund tax in the different counties. Burroughs Taxation, Ch. 5.

William Leese, Attorney General, and T. M. Marquett, in reply.

The county is simply a political division of the state, organized as a part of the machinery of the state for the performance of functions of a public nature. Barton Co. v. Walser, 47 Mo. 189. Laramie Co. v. Albany Co., 92 U.S. 307. The state may require counties to take care of its insane, etc. Poor Commissioner v. Detroit, 28 Mich. 234. City of Alton v. Madison Co., 21 Ill. 115. The power to determine what shall be the taxing district for any particular burden is purely a legislative power, and not to be interfered with by the judiciary. Cooley on Taxation, 110. People v. Supervisors, 20 N.Y. 252. People v. Lawrence, 41 N.Y. 137. People v. Central R. R., 43 Cal. 398.

REESE J. MAXWELL, CH. J., dissenting.

OPINION

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 to which it seems to merit, we must be content with a very brief statement of our conclusions, without...