State ex rel. Wright v. Standford

• Decision Date: 07 December 1901
• Docket Number: 1313
• Citation: 24 Utah 148,66 P. 1061
• Court: Utah Supreme Court
• Parties: THE STATE OF UTAH ex relatione J. A. WRIGHT, Appellant, v. JOSEPH STANDFORD et al., Respondents

66 P. 1061

24 Utah 148

THE STATE OF UTAH ex relatione J. A. WRIGHT, Appellant, v. JOSEPH STANDFORD et al., Respondents

No. 1313

Supreme Court of Utah

December 7, 1901

Appeal from the Second District Court, Weber County.--Hon. H. H Rolapp, Judge.

Application for a peremptory writ of mandate to compel the defendants, as the board of county commissioners of Weber county, to select from a list of three names submitted by J. A. Wright, the relator, as the member of the state board of horticulture for the district in which Weber county is located, the name of one of such persons to act as county fruit tree inspector. From a judgment (refusing the writ) in favor of the defendants, the relator appealed.

AFFIRMED.

Hon. M A. Breeden, Attorney-General, and A. B. Hayes, Esq., District Attorney, Second District, for appellant.

Counties are mere political subdivisions of the State, organized for the convenient exercising of the political, executive, and judicial powers of the State. They perform public and not private functions. Harris v. Supervisors, 105 Ill 451. They are governments of enumerated powers, acting by a delegated authority (Cooley on Const. Lim., 231), which may be enlarged or diminished, at the discretion of the legislative power of the state (Id., p. 232); restraints upon which must be found in the Constitution of the State. Id 233.

This brings us to the question as to what are the restraints, express or implied, imposed by the Constitution upon the legislative department of the State respecting its control of the political subdivisions of the State.

Section 1, article 11 of the Constitution provides that "the several counties of the Territory of Utah, existing at the time of the adoption of this Constitution, are hereby recognized as legal subdivisions of this State and they shall so continue until changed by law in pursuance of this article.

"Section 4. The Legislature shall establish a system of county government, which shall be uniform throughout the State, and by general laws shall provide for precinct and town organizations.

"Sec. 5. Corporations for municipal purposes shall not be created by special laws; the Legislature, by general laws, shall provide for the incorporation, organization, and classification of cities and towns in proportion to population; which laws may be altered, amended or repealed."

The power or right of local self-government is not expressly conferred by the Constitution. It is recognized, however, in the above requirements, and in certain restraints placed upon the legislative department of the State, found in other parts of the Constitution.

Section 5, article 13, provides that the Legislature shall not impose taxes for the purposes of any county, city, town, or other municipal corporation, but may by law vest in the corporate authorities thereof, respectively, the power to assess and collect taxes for all purposes of such corporation.

And section 29, article 6, prohibits the Legislature from delegating to any special commission, private corporation, or association, any power to make, supervise, or interfere with any municipal improvement, money, property, or effects, whether held in trust or otherwise, to levy taxes, to select a capital site, or to perform any municipal functions; and others. But the requirement that the Legislature shall establish a uniform system of county government, and by general laws provide for the incorporation, organization, and classification of cities and towns, must be understood as referring to organizations like those in existence throughout the United States, in their general features at least. Ex parte Wall, 48 Cal. 318; Cooley Const. Lim. (4 Ed.), 228.

As to all matters of public concern, involving State interests affecting the people and property of the State generally, the legislative department of the State is supreme. Cooley on Taxation (2 Ed.), p. 688; People v. Com. Council of Detroit, 28 Mich. 288, 233; Supervisors v. the People, 110 Ill. 511; Harris v. Supervisors, 105 Ill. 451; Marion Co. v. Lear, 108 Ill. 343.

The objects of the act, of which the section complained of is an amendment, is as wide as the State itself. The expense of executing the provisions of the act is apportioned among the several counties of the State and the State. The State is divided into horticultural districts, embracing several counties in each. A new civil division of the State was thereby created, from each of which a member of the State board was appointed, and in which is vested the right to nominate to the board of county commissioners of each county the names of three practical horticulturists, one of whom is to be appointed by the commissioners as the county inspector. The county inspector is authorized to appoint as many deputies as in the judgment of the inspector and members of the State board may be necessary to carry out the provisions of the title; and the whole is a lawful exercise of the police power of the State over matters of State concern. People v. Pinckney, 32 N.Y. 393; State ex rel. Cox v. Board of Education, 21 Utah 409.

It was competent for the Legislature to provide the manner of appointing the county inspector and his deputies that it did, there being no restriction placed upon the Legislature in this respect. People v. Osborne (Colo.), 4 P. 1074; Wenner v. Smith, 4 Utah 238; State ex rel. Williams v. County Com'rs, 9 P. 123; Davis v. State, 61 Am. Dec. 331.

George Halverson, Esq., for respondents.

We contend that section 1176, as amended, is unconstitutional for the following reasons:

1. It interferes with the right of local self-government, which is impliedly if not expressly recognized by the Constitution:

(a) By vesting the power of appointment in other than the local authorities of the county.

(b) By taking the administrative affairs of the county out of its control, and placing them under the control of the State, that is to say, it calls for the regulation by State officers of duties belonging solely to the county officers.

2. It confers power to tax upon others than the "corporate authorities" of the county, to-wit, upon the state board of horticulture, and the county fruit tree inspector.

3. It imposes the expense of enforcing a state regulation upon the county.

4. It attempts by local or special law to regulate county affairs.

5. It violates the mandate of the Constitution requiring the establishment of a uniform system of county government.

It is said in Cooley's Constitutional Limitations: "Local self-government, having always been a part of the English and American systems, we shall look for its recognition in any such instrument, and if not expressly recognized, it is still to be understood that all these instruments are framed with its present existence and anticipated continuance in view." Constitutional Limitations, 35.

Section 1176, as amended by laws of 1899, takes away from the people the right of choosing their own officers, directly or through agents of their own selection. The choice of a person to fill an office constitutes the essence of the appointment, and the selection must be the discretionary act of the officer clothed with the power of appointment. 19 Amer. and Eng. Ency., 423, 417, 418; People v. Mosher (N.Y.), 57 N.E. 91; People v. Hurlbut, 24 Mich. 44; State v. Hyde, 121 Ind. 20; Rathbone v. Wirth, 45 N.E. 17; People v. Angle (N.Y.), 17 N.E. 416; Evansville v. State, 118 Ind. 426; People v. Detroit, 28 Mich. 228; State ex rel. Hamilton v. Krez (Wis.), 59 N.W. 593; People v. Bull, 46 N.Y. 57; People v. Kinney, 52 N.Y. 374; Menges v. Albany, 56 N.Y. 374; Atty.-Gen. ex rel. v. Trombly, 50 N.W. 746.

While section 1176 of the Revised Statutes, as amended by chapter 47 of the Laws of 1899, does not, in terms, grant the taxing power to the members of the state board of horticulture and the county inspector, it does provide that the county inspector shall appoint as many deputy inspectors as the members of the state board of horticulture may judge necessary to carry out the provisions of that title. It will be seen that it gives the state board of horticulture the power to appoint as many deputy inspectors as it may see fit, and that it imposes the expense of their payment upon the county. It is familiar doctrine that the "power to create a debt is the power to tax."

This section confers upon the state board of horticulture the power to create a debt--the power to tax--whereas the Constitution authorizes the Legislature to vest the power of taxation in the corporate authorities of the county (section 5, article 13). "By the term corporate authorities' must be understood those municipal officers who are either directly elected by the population to be taxed, or appointed in some mode to which they have given their assent." Hessler v. Drainage Com'r., 53 Ill. 113; Lovingston v. Wider, 53 Ill. 305; People v. Mayor, etc., Chicago, 51 Ill. 31; People v. Salomon, 51 Ill. 31; Harward v. St. Clair Drainage Co., 51 Ill. 130; People v. Chicago, 51 Ill. 58; Wetherell v. Devine, 116 Ill. 631; Elmwood v. Marcy, 92 U.S. 289; Helena Consolidated Water Co. v. Steele (Mont.), 49 P. Rep. 382; McCabe v. Carpenter, 36 P. Rep. 836; Rathbone v. Wirth, 150 N.Y. 459; 45 N.E. 15; Davies v. Board of Sup'rs., 50 N.W. 862; People v. Mosher, 57 N.E. 91; Baker v. Seattle (Wash.), 27 P. Rep. 465.

While the statute is in form general, it is, in effect, local. It is upon a subject of a general nature, to-wit, quarantine and should be provided for by general law. "In all cases where a general law can be made applicable, no special law shall be enacted" (subdivision 18, section 26, article 6). "All laws of general nature shall have a uniform operation" (section 24, article 1). "The Legislature is...