State ex rel. Carey v. Ballard

148 N.W. 1090, 158 Wis. 251, 1914 Wisc. LEXIS 291

• Court: Wisconsin Supreme Court
• Decided: October 6, 1914
• Status: Published

Opinion

Siebecker, J.

The question presented is, Do the provisions of sub. 3 of sec. 1317m — 4, Stats. 1913, delegate the legislative power to levy a tax to any group of freeholders of' a county who may desire “the improvement of a portion of' the system of prospective state highways,” and if so, is it in violation of the constitutional .provision vesting the legislative-power in a senate and assembly? By this section of the-statutes it is enacted:

“If any town shall fail to appropriate at its annual meeting a sum requiring a tax of three mills on the dollar of its assessed valuation for any of the purposes mentioned in subsection 2 of this section, any group of freeholders in the county desiring the improvement of a portion of the system of prospective state highways lying within that town may, at any time previous to the fifteenth day of August following such failure, present to the town board a petition stating that they desire the improvement of such a portion of the system as they designate in the petition, in one of the manners provided in subsection 2 of this section, also to be set forth in .the petition. With such petition shall be filed a receipt from the town treasurer, showing that an amount not less than fifty per cent, of the town’s share of the estimated cost of the improvement petitioned for has been paid. The town board shall then levy a tax sufficient to cover the remainder of the cost to the town of the improvement. The total of such levy and all levies made under subsection 1 of this section shall in no case exceed three mills on the dollar of the assessed valuation of said town, except as provided in subsection 1 of this section.”

Under our constitutional form of government the legislature cannot delegate legislative powers to any officer or to any body of persons, individual or corporate, aside from the power to confer local legislative and administrative powers on county boards and municipal corporations. Incorporation of North Milwaukee, 93 Wis. 616, 67 N. W. 1033; State ex rel. Adams v. Burdge, 95 Wis. 390, 70 N. W. 347; Dowling v. Lancashire Ins. Co. 92 Wis. 63, 65 N. W. 738; State ex rel. Van Alstine v. Frear, 142 Wis. 320, 125 N. W. 961. This principle of constitutional government applies with peculiar force to questions involving the power to tax. It is a well recognized principle that county, town, city, and village organizations are a part of the general feature of our political system and form necessary parts of the state government for carrying into effect, through the power of making local laws, the matters pertaining to local governmental affairs, including the power to tax within their respective jurisdictions. In conferring the taxing power on these local governments the legislature must provide for its exercise by the proper legislative authority of the local governments. Chicago & N. W. R. Co. v. State, 128 Wis. 553, 108 N. W. 557. In Houghton v. Austin, 47 Cal. 646, on page 657 it is stated that the taxing power is “one of the most important intrusted to the legislative department, and one which, as much as any other, calls for the exercise of the judgment, wisdom, and patriotism of the people’s representatives. It is no more objectionable to refuse to the people a representation in the body which fixes the amount of this burden than for their representatives to abandon their duty and put it in the' power of any three men (however worthy of confidence) to fix the sum which the people shall be compelled to pay.” In People ex rel. Hopkins v. Kings Co. 52 N. Y. 556, 567, it is held: “They [the legislature] must determine the amount necessary and adequate, and declare the amount to be 'levied absolutely.” “The legislature must therefore determine all questions of state necessity, discretion, or policy involved in ordering a tax and in apportioning it.” 1 Cooley, Taxation (3d ed.) 46. The adjudications .on the subject clearly establish that the tax power must be exerted by the legislative branch of the government either directly or through the officers of a political subdivision, who act in their capacity of legislative representatives of the people to b'e taxed, and that they are required to exercise their discretion and judgment as to the necessity and amount of the tax to be imposed. Board of Comm’rs v. Abbott, 52 Kan. 148, 34 Pac. 416; McCabe v. Carpenter, 102 Cal. 469, 36 Pac. 836; State ex rel. Howe v. Mayor, etc. 103 Iowa, 16, 72 N. W. 639; Bernards v. Allen, 61 N. J. Law, 228, 39 Atl. 716; Munday v. Rahway, 43 N. J. Law, 338; Meriwether v. Garrett, 102 U. S. 472. Under sec. 1223, Stats., it is made the duty of town boards to have the care and supervision of all highways and bridges therein and to assess the highway taxes in their town for each year. This policy is carried out in ch. 337, Laws of 1911, providing for state aid and supervision for improvement of public highways and making appropriations therefor, which embraces see. 1317m — 4, in question here. Under the provisions of this chapter of the statutes the legislature has properly conferred the taxing power upon town boards for the care and supervision of highways within their jurisdictions. The question is. Do the provisions of sub. 3 of sec. 1317m — 4, Stats., deprive the town boards of their authority to act as the legislative representatives of the people of their respective towns as regards the levying of highway taxes ? The provisions of this subsection are mandatory and require the town board to levy a highway tax whenever any group of freeholders of the county, desiring the improvement of a portion of the system of prospective state highways lying within the town, present a petition designating the portion of such system they desire to have improved and a receipt of the town treasurer showing that at least one half of the town’s share of the estimated cost of the specified improvement has been paid. It is clear that the town board under such circumstances has no discretion in the matter; that they are deprived of exercising their judgment as to the necessity and the amount of the tax to be imposed. The statute in effect vests in the group of- freeholders the power of determining the question whether or not such a tax shall be levied and thereby deprives the town board of the right to pass on this question. This results in conferring the power of levying such tax on a group of freeholders who are not responsible to the people in any respect for the imposition of this tax burden. This, as appears by the adjudications referred to, is in violation of the constitutional right of the taxpayers of the town and renders such attempted legislation invalid. The argument is made that this group of freeholders do not determine the amount of the tax to be levied pursuant to their petition, but that their contribution to the improvement is only a part payment of the cost of the desired improvement which has been directly imposed by the state legislature. The statute providing for the improvement of prospective state highways contains no provision commanding such improvement of any highway. The authority for making such improvements is conferred on the municipalities as local agencies of the state to carry on this governmental function, but the provisions of sub. 3 of sec. 1311m — 4 run counter to this scheme and deprive these local authorities of exercising their discretion and judgment as to the desirability of making the improvement designated by the freeholders, and arbitrarily compel them to impose a tax burden on the people of their taxing district. Such being the effect of the legislation, it necessarily follows that the legislature acted in excess of its power in attempting to vest authority for the imposition of a tax for improving highways in a body of freeholders who are not elected by the people as their representatives, nor in any way responsible to them on account of the tax burdens they imposed. AVe must hold this subsection of the statute as an unwarranted delegation of this power upon several persons in their individual capacity, and that it is invalid and void.

It is suggested that the power conferred by sub. 3 of sec. 1317m — 4 is in its nature and effect practically identical to that conferred by sec. 1319, Stats., whereby a county board is directed to levy a tax for one half the cost of the construction and repair of a bridge upon petition of a town board showing the town has voted to construct or 'repair a bridge wholly or partly within such town. An examination of sec. 1319 discloses that the legislative power to determine upon the levy of the tax for the cost of the bridge is delegated to the voters of the town, which has universally been considered an .appropriate political subdivision of the state to exercise this power for local purposes and who are responsible to the taxpayers of the town for its share of the cost of the bridge. The town as an integral part of the county can appropriately be selected as the representative of all the people of the county for the purpose of determining the desirability, necessity, and amount of the tax to be paid in the county for this public improvement. The power so to tax the people of the county, and to determine the necessity of the improvement and the cost thereof, is conferred on the town authorities upon tbe idea that tbe state can select tbis political subdivision to determine these questions for all-tbe people of tbe county in tbe administration of tbe functions of tbe state for establishing and maintaining tbe public highways located in tbe towns. S.ub. 3 of sec. 1317ro — 4, as we have seen, delegates tbis power to a group of persons in their individual capacity, which is condemned as contrary to tbe principles of representative government under our constitution.

Tbe law, as it exists with this section omitted therefrom, in no way prevents tbe town boards from accepting any moneys that may have been heretofore, or will be hereafter, bequeathed, donated, or paid to a town for tbe purpose of securing tbe improvements contemplated by tbe law, and which were intended to be used in connection with any available highway improvement funds in tbe town treasury for tbis purpose, and applying such moneys in payment of tbe cost of such improvement.

Dropping tbis section from tbe statute leaves a complete scheme for tbe improvement of highways as contemplated by tbe legislature. Tbe provisions of this section are independent and separable from tbe other parts of tbe act, and there is no ground for bolding that tbe provisions of tbis section were tbe inducement of tbe enactment of tbe other parts of tbe law as it stands with this section omitted. Under tbe circumstances, tbe valid parts of tbe statute stand as tbe law regulating tbis subject.

By the Court.- — Tbe order appealed from is reversed, and the cause is remanded to tbe lower court with directions that tbe demurrer to tbe return be overruled and for further proceedings according to law.