State v. Edwards

• Decision Date: 25 October 1910
• Citation: 111 P. 734,42 Mont. 135
• Parties: STATE ex rel. GERRY v. EDWARDS, Mayor, et al.
• Court: Montana Supreme Court

111 P. 734

42 Mont. 135

STATE ex rel. GERRY v. EDWARDS, Mayor, et al.

Supreme Court of Montana

October 25, 1910

Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.

Mandamus by the State, on the relation of M. H. Gerry, Jr., member of the Board of Park Commissioners of the City of Helena against Frank J. Edwards, as Mayor of the City, and others to compel a levy of taxes. From a judgment dismissing the proceedings, relator appeals. Affirmed.

Albert J. Galen, Atty. Gen., and E. C. Day, for appellant.

Edward Horsky, for respondents

HOLLOWAY J.

On September 29, 1910, the board of park commissioners of the city of Helena, through M. H. Gerry, Jr., one of its members presented to the district court of Lewis and Clark county an affidavit, in which it is recited that the persons named are the duly appointed, qualified, and acting members of the board and, together with the mayor of the city of Helena, constitute such board; that pursuant to the provisions of section 3319, Rev. Codes, the board met in regular session and made an estimate of the amount of money which will be necessary to carry on the work of the board for the ensuing year; that such amount is $11,500 and is actually necessary for the work of the board; that to raise this sum will require a tax levy of not more than one mill on the dollar of the assessed valuation of the taxable property of the city; that such amount was duly certified to the city council of the city of Helena, on a date prior to the time when the city council was required to make the annual levy of taxes for city purposes; that when the city council met on September 19, 1910, to make the levy of taxes for city purposes, it failed and refused, and has ever since failed and refused, to make any levy whatever for park purposes or to meet the requirements of the park board. Upon the filing of this affidavit, an alternative writ of mandate was issued, and upon the return thereof the mayor and councilmen filed a joint demurrer and a joint motion to quash the writ. The demurrer and motion were sustained, the proceedings dismissed, and a judgment rendered and entered in favor of the defendants, from which judgment this appeal is prosecuted.

There is hereby presented for our determination the question of the validity of an act of the Seventh Legislative Assembly, entitled "An act creating a board of park commissioners as a department of the city government in cities of the first class, defining its powers and duties, fixing the term of office of commissioners and providing for their appointment by the Governor," approved March 7, 1901 (Laws 1901, p. 73); and this must be determined by the proper solution of the two other questions: (1) What did the framers of the Constitution mean by "corporate authorities"? (2) What view was entertained by the framers of our Constitution as to the status of cities in this state?

1. The purpose of this act, as indicated by the title, is to create a board of park commissioners in all cities of the first class. The board is composed of the mayor and six other members who are appointed by the Governor. The act provides for the organization of the board, and enumerates its duties and powers and the duties of the clerk. Section 2 of the act provides: "Said board of park commissioners shall have the following powers and be charged with the following duties: *** (6) To raise by taxation such a sum each year as the board shall determine to be necessary to defray the expenses of carrying out the work of said board not exceeding, however, in any one year a sum equal to an assessment of one-tenth of one per cent. upon all of the taxable property of the city as the same appears by the assessment roll of the county for said year." Section 5 of the act (section 3322, Rev. Codes) provides that every year, on or before the day when the city council is required to make the annual tax levy for city purposes, the park board shall make an estimate of the amount of money necessary to be raised for park purposes, and shall certify the amount of such estimate to the city council, and "thereupon it shall be the duty of the city council to cause the sum stated in said certificate to be included in the assessment of city taxes for said year," etc. It is not necessary to refer to the other provisions of the act at this time. Subdivision 6 of section 2 of the act above in express terms vests in this board of park commissioners the power and authority to levy taxes for park purposes upon all taxable property within the city. There is not any discretion whatever left in the city council with respect to this item of taxation. When the council receives the certified estimate from the park board, it is compelled to raise the amount of funds necessary to meet the requirements of the board, or, in other words, the city council is the mere agent of the board for the purpose of collecting the tax.

(a) Section 4 of article 12 of the Constitution of Montana provides: "The Legislative Assembly shall not levy taxes upon the inhabitants or property in any county, city, town, or municipal corporation for county, town, or municipal purposes, but it may by law vest in the corporate authorities thereof powers to assess and collect taxes for such purposes." If this board of park commissioners is one of the corporate authorities of the city, within the meaning of those words as used in the Constitution above, then this act does not violate the letter of the Constitution, otherwise it does; and the determination of this must rest upon the proper definition of those words, as understood and used by the framers of the Constitution in 1889. What were those words intended to mean? This question is not a new one. It has received the attention of the courts during the last half century. Many years before the adoption of our Constitution, the words "corporate authorities," as used in section 4, art. 12, above, had been given a judicial definition. In 1869 the Supreme Court of Illinois, in Harward v. St. Clair Drain Co., 51 Ill. 130, was called upon to determine the meaning of those words as used in the Constitution of Illinois in the same connection as they are used in our Constitution above. In that case the statute under consideration created a board, named the members, and gave to the board taxing power. After much consideration of the question, the court expressed its determination as follows: "As the object of this constitutional clause was to prevent the Legislature from granting the power of local taxation to persons over whom the population to be taxed could exercise no control, it is evident that, by the phrase 'corporate authorities,' must be understood those municipal officers who are either directly elected by such population, or appointed in some mode to which they have given their assent." This was approved in People ex rel. McCagg v. Mayor of Chicago, 51 Ill. 17, 2 Am. Rep. 278; People ex rel. South Park Commissioners v. Common Council of Chicago, 51 Ill. 58; Lovington v. Wider, 53 Ill. 302, and the definition of the words, as thus given, is referred to with approval in many other cases. In the absence of any definite information as to the meaning which the framers of our Constitution attached to the words "corporate authorities," it is a fair presumption that they used them with reference to the meaning which they had acquired in other states having the same constitutional provision.

(b) The framers of the Constitution must have understood the rule of law, which is universally recognized, that the exercise of the taxing power is the exercise of legislative authority; and, when they determined that the power to levy taxes for city purposes should be exercised only by the corporate authorities of the city, they must have meant by the "corporate authorities" those who constitute the legislative branch of the city government--at this time, the mayor and city council. In Nebraska an act of the Legislature of 1881 provided that the corporate authorities of a city should have the power to license, regulate, and prohibit the liquor traffic in the city. Viewing this exercise of power as a legislative act, the Supreme Court of Nebraska, in State ex rel. Fairchild v. Andrews, 11 Neb. 523, 10 N.W. 410, said: "By the term 'corporate authorities,' as we understand it, is evidently meant those officers of the cities or villages to whom is given the ordinance-making power, which in cities of the second class, to which Crete belongs, are the mayor and council thereof."

2. What view did the framers of our Constitution take of city government, so far as the taxing power is concerned? Many years prior to the adoption of our Constitution, the question of the relation of a city to the state legislative branch of government, as affected by the exercise of the taxing power for local municipal purposes, had led to extensive litigation, with the result that two well-defined theories had been developed, viz.: (a) the theory of absolute legislative control; and (b) the theory of local self-government.

(a) Speaking of this first theory, Gray, in his Limitations of Taxing Power (section 651), says: "The courts which assert the wider powers of the Legislature in matters of local interest regard the local subdivisions purely as agencies of the state. They carry the doctrine that the Legislature is supreme in matters of taxation to its fullest extent. They regard the state Legislatures as having the whole legislative power of the state, without any implied exceptions in favor of local self-government." The states which adopt this view are Delaware (Coyle v McIntire, 7 Houst. 44, 30 A. 728, 40 Am. St. Rep. 109); Georgia (Churchill v. Walker, 68 Ga. 681); Kansas ( Wulf v. Kansas City, 77 Kan. 358, 94...