State v. Board of County Commissioners of Laramie County

• Decision Date: 17 December 1898
• Citation: 55 P. 451,8 Wyo. 104
• Parties: STATE v. BOARD OF COUNTY COMMISSIONERS OF LARAMIE COUNTY
• Court: Wyoming Supreme Court

55 P. 451

8 Wyo. 104

STATE v. BOARD OF COUNTY COMMISSIONERS OF LARAMIE COUNTY

Supreme Court of Wyoming

December 17, 1898

ON reserved questions from the District Court, Laramie County HON. RICHARD H. SCOTT, Judge.

This was an action brought by the State against the Board of the County Commissioners of the County of Laramie to recover certain State taxes alleged to be due the State from said county. The defendant demurred to the petition, which had set out in full all the facts out of which the liability of the county was claimed to have arisen. At the hearing upon the demurrer, the district court, deeming certain legal questions arising thereon to be difficult and important, ordered the cause to be reserved to the supreme court for its decision upon said questions. The questions so reserved, and the facts so far as material, are stated in the opinion.

J. A Van Orsdel, Attorney-General, for the plaintiff.

The fact that the taxes were not collected by the county is no defense. (Rev. Stat., 3836; State v. Co Com'rs., 4 Wyo. 313; State v. Multomah Co., 13 Or. 294; Mayor v. Davenport, 92 N.Y. 614; State v. Kings Co., 125 N.Y. 312; County v Com., 36 Pa. 524; Winchester Co. v. Toyer, 24 Wis. 312.)

In matters of taxation, the county is made the debtor of the State to the extent of the State's quota. (Connor v Co., 10 A. 772; Co. v. Comm'rs., 36 Pa. 524.)

But in a general way the county officers are the local agents of the State for the purpose of collecting the State's revenue. Laramie Co. v. Albany Co., 92 U.S. 312; Russell v. Reed, 27 Pa. 170; State v. Co. Court, 34 Mo. 572; R. R. Co. v. Washington Co., 30 Gratt., 474.)

The power of the Legislature over counties is plenary and absolute, except as restricted by the Constitution, and it may require of them and their officers such public duties and functions as fall within the scope and objects of municipal organization and are necessary to the needs of State government. State v. McFadden, 23 Minn. 40; Co. of Richmond v. Co. of Lawrence, 12 Ill. 1; State v. Commissioners, 12 Kan. 426; Wade v. Richmond, 18 Gratt., 583; State v. Dorsey, 28 Ark. 378.)

Therefore, as the interests of State and county are common, it is not to be presumed the State will take advantage of its power and so legislate as to injuriously tax and destroy the interests of its counties, nor, on the other hand, is it to be presumed a subdivision will be allowed to deprive the State of its just proportion of the revenues collected by it. This would be manifestly unjust, for were it not for the legislative delegation of power to tax, the subordinate county would be powerless to tax even for its own needs. The State acts by the municipal governments, and their acts in levying taxes are as much the act of the State as if it acted by its own officers. (Desty on Taxation, Vol. 1, 465; Gilman v. Sheboygan, 2 Black, 510; Knowlton v. Rock Co., 9 Wis. 410; Lunsden v. Cross, 10 Wis. 282; Co. v. Mighels, 7 O. St., 109; State v. Gracey, 11 Nev. 228.) Any addition to the list of assessable property which may have been made by the county officers after the delivery of the tax list to the collector is but an amendment to the original list, and consequently subject to all provisions of the statute which may have applied to the original list. (Harwood v. Brockfield, 130 Mass. 561.)

The word "institution" as used in the constitution is a description of the place or establishment where certain branches of the State business or organization are carried on. (25 O. St., 244; 1 Ency. L., 236; 1 Abb. L. Dict., 629; City v. Sturdevant, 24 Ind. 39.) The meaning of the word "charitable" is generally derived from the Statute of 43 Eliz., Ch. 4, which is a part of the common law, and in force here. (Rev. Stat., Sec. 498; State v. Foster, 5 Wyo. 199; Jackson v. Phillips, 14 Allen, 539; 1 Abb. L. Dict., 209; McGill v. Brown, Brightley, Pa., 347; 7 Johns Ch., 292; 30 Pa., St., 437; 1 Kean, 234; Ambler, 651; 24 Conn. 349; 10 Allen, 177.)

The authorities cited establish a legal meaning to the word "charitable," comprehending such institutions as houses of correction and penitentiaries. It seems hardly necessary to rely upon the application of the statute by analogy, for the application is direct, a penitentiary being an institution of the same general character as a house of correction, and I believe I may safely say, that the use of the phrase "house of correction" in the Stat. 43, Eliz., was intended by its framers to embrace penal institutions of all kinds then in use, such as workhouses, jails, or other places for the confinement of persons convicted of crimes or misdemeanors. The word "penitentiary" is of later origin, being first used in statutes a century later than the date of Stat. 43, Eliz. The difference between a penitentiary and a house of correction; viz., the one for adult, and the other for juvenile offenders, is not such as to take either one out of the classification of charitable institutions.

If it be held that a house of correction is a charitable institution (and certainly it must be so held under the Stat. 43, Eliz.), it can not reasonably be said a penitentiary, the purpose of which is the confinement and improvement of an older class of offenders, is not equally a charitable institution. Any doubt as to the similarity of a house of correction and a penitentiary should give way in the light of the Statute of England, which provided "that when any person is convicted of any theft, or larceny, and burnt in the hand for the same according to the ancient law, he shall also at the discretion of the judge be committed to the house of correction or public workhouse to be there kept to hard labor," etc., and later by Stat. 19, Geo. III, C. 74, "all offenders liable to transportation may . . . be confined to hard labor in certain penitentiary houses." (Blackstone's Com., Book IV, 370; Cooley's 3d ed.) It must be conceded if a penitentiary is a charitable institution, that any levy of taxes for its support or maintenance need not be included within the four mills authorized by the Constitution for State revenue, but would properly come within the exception in Section 4, Article 15.

That a penitentiary is a charitable institution I maintain is a correct conclusion to draw from the language of the statute constituting a part of the common law in force in this State, and from the language of adjudicated cases.

If the tax is excessive, only so much as exceeds the limitation is void. (Mix v. People, 72 Ill. 243; O'Kane v. Treat, 25 Ill. 557; Buscon v. Allison, 43 Ill. 291; State v. Allen, 43 Ill. 456; Allen v. R. R., 44 Ill. 85; People v. Nichols, 49 Ill. 517; Clifton v. Wynne, 80 N.C. 149.) The county can not question the legality of the State tax levy. (92 N.Y. 604; 36 Ind. 184; 80 N.C. 145; 66 id., 371; id., 632; 6 Ired., 191; 7 id., 68.)

Robert W. Breckons for defendant.

The defendant in this case maintains that the provisions of Sec. 5, Art. 15, and Sec. 4, Art. 16, of the constitution negative the idea that a county is indebted to a State by reason of taxes levied and remaining uncollected through no negligence on the part of the county. Up to the year 1895 by the provisions of Section 3768 of the Revised Statutes, the various counties were permitted to make levies for purposes specified in that section, not to exceed the twelve mill limitation of the constitution. These purposes were, "ordinary county expenses;" "support of the poor and lunatic;" "road purposes;" "taxes sufficient to defray expenses of the district court;" and "county school purposes."

Perhaps, under the decisions of the Supreme Court, they might have been permitted to levy a judgment fund in conformity with the provisions of Section 1798 of the Revised Statutes. During the year for which such taxes were levied under the provisions of Section 6 of Article 16 of the constitution, no debt in excess of the amount thereof could be incurred except by a vote of the people.

An examination of our statutes will disclose that there is no method by which the Board of County Commissioners can in any given year levy a tax for the purpose of meeting any deficiency in the collection of State taxes for that year. In many States a provision exists in the revenue laws by which counties may levy a tax or percentage for the purpose of meeting an anticipated deficiency, but Wyoming is not numbered among these States. According to the theory of the attorney-general, after the abstract of the assessment roll of a given county is sent to the State board, and after the board, in conformity with the power conferred upon it by the laws of the constitution, make a levy, the county becomes debtor to the State for the amount of such levy. Under this construction there can be no question but that a debt is created, and there can further be no question but that this debt is created during the year the levy is made. That the constitutional provision cited covers debts of this character, see the Baker case, 6 Wyo. 369.

It would seem, then, that the only remaining question to be determined in order to ascertain whether Section 2 of Article 16 is applicable in this case, is as to whether or not such a debt is in excess of the taxes for the current year. There being no statutory authority authorizing the levy of a tax to meet the anticipated deficiency in the amount of the State tax, no levy can be made for this purpose prior to the occurrence of such deficiency. It would, therefore, seem plain and beyond any question that such debt is in excess of the tax for the current year.

It can not be urged that this deficiency could be met out of the fund raised by the levy for general revenue purposes in the county, for several reasons. The fund raised in a county at present for general...