20 Haw. 411 | Haw. | 1911
OPINION OP THE COURT BY
In a petition for a writ of mandamus before a circuit judge of the first judicial circuit, it was alleged that the petitioner is a resident citizen of the Territory of Hawaii, and the owner of a building and the land upon which it stands, situate on the
The respondent demurred to' the petition and alternative writ on the ground that it was not shown that he was under any clear legal duty to receive, act upon or grant the petitioner’s said application.
The demurrer was overruled, and the judge allowed an appeal to this court.
The circuit judge was in error in holding that the respondent, by his demurrer, admitted the alleged unconstitutionality of the statute. That a statute is unconstitutional is a matter of law. A demurrer does not admit such an allegation. Furthermore, no court should hold a statute unconstitutional simply because litigants have alleged and conceded it to be in conflict with the constitution. (Ante p. 404.)
Section 1036 of the Revised Laws provides that the rates of charges for the use of the sewer shall be fixed from time to time by the superintendent of public works, subject to the ap
Act 105 of the Session Laws of 1909, provides that all revenues derived from the Honolulu water and sewer works shall be used for the expenses of maintenance and operation of said works; the payment of interest on the indebtedness incurred in the construction, improvement and extension of said, works; and that not less than ten per cent, of the yearly gross receipts shall be set aside for the payment of said indebtedness.
The City and County of Honolulu is authorized, by statute, “to make and enforce within the city and county of Honolulu all necessary ordinances covering all local police matters of sanitation, inspection of buildings, condemnation of unsafe structures, plumbing, sewers, dairies, milk, fish, cemeteries, burying grounds, interment of the dead and morgues and the collection and disposition of rubbish and garbage, and no ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute or statutes of the Territory whether such ordinance is in conflict with any such statute or statutes or otherwise.” Section 23, Act 118, Session Laws of 1907, as amended by Section 1, Act 99, Session Laws of 1909. -
'Section 8 of ordinance No. 6, of thé City and County of Honolulu, enacted, August 4, 1909, provides that all plumbing work in any building of any description shall be connected with
The board of health of this Territory is authorized to make such regulations respecting nuisances, sources of filth and causes of sickness as it shall judge necessary for the public health and safety. Penal Laws (3897), Sec. 870; Lev. Laws, Sec. 991. By a subsequent amendment (Act 42, Session Laws, 1905) such regulations require the consent of the' governor. Snch regulations must be published, and the penalty for their violation is fixed by the statute at a fine not exceeding one hundred dollars.
Section 2 of the plumbing regulations of the board of health, the enactment of which preceded that of the said sections of the Bevised Laws, provides that “Every building of any description in which there are plumbing fixtures or in which plumbing fixtures are to be placed shall be connected with the public sewer where such sewer is accessible, and where there is no sewer accessible with a. cesspool connected in accordance with the rules of the board of health.”
In Territory v. Brown, 19 Haw. 41, it was held that an agreement made by the defendant prior to the enactment of the provisions now contained in sections 1036 to 1039 of the Bevised Laws, by which the defendant agreed to pay to the superintendent of public works “such rates annually for the use of the sewer as may be fixed” was a valid and enforceable one.
It was there said (p. 43) : “The case is not within the rule applicable to unauthorized assessments made upon owners or occupants of property abutting upon streets in order to obtain funds for defraying the expense of public improvements which benefit the property. The defendants’ request for permission to connect the property with the sewer and their promise to pay for use of the sewer are not shown to have been required by any rule or regulation of the superintendent of public works or of the board of health. It was a voluntary offer which pre
In Territory v. Tue Bun, ante p. 267, it was held that the defendant, who had voluntarily entered into the agreement required by the superintendent, was not in a position to question the validity of the demand for sewer rates. It was there pointed out that there was “no evidence that, the defendant made the agreement for the payment of sewer rates from fear of being held liable for the penalty under the regulation of the board of health” (p. 269), and that “if he had seasonably made the objections which he now makes to the legality of the rates or to the constitutionality of the act his objections might have received consideration from the superintendent who would then have had an opportunity to be advised whether the objections were well taken, and in that event he might have applied to the legislature for an amendment of the law.” (p. 271.)
In McCandless v. Campbell, ante p. 264, it was held, the validity of the legislation not then being questioned, that it was within the statutory powers of the superintendent to require an applicant for sewer connections to sign an agreement' to pay such annual rates for the use of the sewer as may be fixed, as a condition precedent to the granting of permission to connect with the sewer.
In the view we take of this case it will be necessary only to deal with the contention which has been advanced on behalf of the petitioner that the provisions of the Revised Laws, above 'referred to, constitute an illegal attempt on the part of the legislature to delegate the power of taxation to the superintendent of public works.
It is an established doctrine of constitutional law that the power conferred upon the legislature to make laws cannot be delegated to any other body or authority. Cooley’s Constitutional Limitations (6th ed.) 137; 1 Watson on the Constitu
There is no provision in the act creating this Territory (31 Stat. L. 141) which expressly forbids the delegation of powers by one department of the government to1 another, but the application of the principle that powers cannot be delegated by those upon whom they have been conferred would seem to be required by the nature of the various powers, the terms used and the purposes for which they were bestowed, except in so far as through long practice the delegation of powers has become cus^ tomary throughout the United States.
The legislature, in delegating the power to tax, can delegate 'it only to a municipality itself. It cannot confer it iipon ministerial or administrative officers. Cooley on. Taxation (2d ed.) 64; State v. Mayor, 103 Ia. 76; Van Cleve v. Sewerage Commissioners,, 71 N. J. L. 574, 583.
It has long been the practice in this country to invest boards of health with what seem to be legislative powers relating to matters affecting the public health, and, in this connection, to authorize the promulgation of rules and regulations which have for their object the protection of the public health and the prevention of disease. The validity of such legislation has been •repeatedly affirmed. Polinsky v. People, 73 N. Y. 65; People v. Vandecarr, 175 N. Y. 440; Salem v. Eastern R. Co., 98 Mass. 431; Belmont v. Brick Co., 190 Mass. 442; Blue v. Beach, 155 Ind. 121; State v. Kirby, 120 Ia. 26; State v. Zimmerman, 86 Minn. 353.
It has been held that municipalities may, in the interest of the public health, compel property owners to connect their premises with the public sewer. Com. v. Roberts, 155 Mass. 281; Hill v. St. Louis, 159 Mo. 159; Martin v. Hilb (Ark.), 14 S. W. 94.
The validity of either the ordinance or the regulation of the board of health, above referred to, has not been questioned by counsel for either party. But we feel justified in holding, at least for the purposes of this case, that their validity cannot be successfully assailed. It is evident, therefore, that the petitioner’s claim that his application for permission to connect his building with the public sewer is not a voluntary act, but one compelled by those laws, is well founded.
Counsel for the respondent has correctly pointed out that the petitioner’s contention is based entirely upon the assumption that the sewer rates in question are a tax, and, in arguing that they cannot be regarded as a tax, he relies largely on the former decisions of this court which have been above noticed, and on the case of Richards v. Ontai, ante p. 335.
The question whether these sewer rates constitute a tax is one of much difficulty, and we believe it has not been decided so _ far as .its present application is concerned by any of the cases referred to. We have been referred to no case, and have found none, which could be regarded as a controlling authority on the question here presented.
In Richards v. Ontai, it was decided merely that sewer rates were not to1 be regarded as taxes within the terms of a lease providing that the lessor should pay the “taxes” on the demised. premises and that the lessees should pay “all other charges.”
The case of Jones v. Commissioners, etc., 34 Mich. 273, was also cited. It was there said (p. 275) that, “water rates are in no sense taxes but are nothing more than the price paid for
It is argued on behalf of the respondent that, notwithstanding the ordinance and board, of health regulation, the application for permission to connect with the sewer must be regarded as the voluntary act of the petitioner because there is nothing in the law to compel him to erect a building at all, certainly not one with plumbing in it. The court- takes judicial notice of the fact that the location of petitioner’s building is within the business portion of the city where land is valuable. We think that the argument referred to does not afford a satisfactory response to the contention that the making of the application is not a voluntary act. Public as well as private interests benefit from the improvement of city property.
In Carson v. Brockton Sewerage Commission, 182 U. S. 398, it was held that the sewer rate there involved was not a tax. But in that case the court emphasized the fact that there was no board of health regulation, or other law, requiring property owners to- connect their premises with the public sewer, (pp. 401, 403.)
If the rate was made merely nominal or simply enough to cover the cost of inspection it might properly be regarded as an office fee or as an exercise of the police power, but the statute plainly shows, to our minds, that it was designed to be a revenue producing measure, and, as such, is to be regarded as a tax and, therefore, subject to the principles which govern the imposition and assessment of taxes. The rate demanded, and which the petitioner refuses to pay, is in addition to the “application fee” charged, which latter, it- is alleged, the petitioner is willing to pay and has tendered.
The report of the superintendent of public works for the biennial period ending June 30, 1910, shows (p. 130) that for the fiscal year ending that date he had collected the sum of $209 for sewerage application fees, and the sum of $35,882.06 for sewer rates, including penalties on delinquent payments.
“Taxes are generally defined as burdens or charges imposed by legislative authority on persons or property to raise money for public purposes, or, more briefly, ‘an imposition for the supply of the public treasury.’ ” 27 Am. & Eng. Enc. Law, 578.
“The word ‘taxes’ is very comprehensive, and properly includes, as indicated in the foregoing definition, all burdens, charges and impositions by virtue of the taxing power with the object of raising money for public purposes.” Ib. 579.
There are “general” and ‘‘special” taxes. Illinois Central Railroad v. Decatur, 147 U. S. 190, 197.
These sewer rates, imposed under the circumstances shown, fall clearly within the foregoing definitions of a tax. They are “enforced contributions,” and “burdens or charges,” imposed on property in aid, of the public treasury and for the support of the government.
The power of taxation is essentially a legislative power. It cannot be delegated except to' municipalities which themselves exercise subordinate legislative powers. The power to tax must not be confused with the administrative duties which are necessarily involved in the assessment and collection of taxes. In the nature of things, the legislature itself cannot attend to all the details involved in the enforcement of the law. Those must of necessity be entrusted to administrative officers. But the tax can be imposed only by the legislative power. No arbitrary discretion to fix the rate of a tax, or to determine the method by which it is to be levied, or to adjust its apportionment among the tax-payers, where the principles upon which the apportionment is to be made are not fixed, can be left to' the executive branch of the government.
“There is a difference between making the law and giving effect to- the law; the one is legislation and the other administration. We conceive that the legislature must, in every instance, prescribe the rale under which taxation may be laid;
It will be observed that the only rule fixed by the legislature with reference to the tax in question is that, the total amount of the revenue to be raised by its levy shall approximate as nearly as reasonably may be, but not exceed, the total yearly cost of maintaining and repairing the sewers together with interest on the bonds which represent the cost of installing the system. It is not a mere matter of calculation that has been left to the superintendent. The legislature failed to- fix the principle upon which the charges were to be based. No rule or method is prescribed by which the superintendent, shall be guided in fixing or adjusting tire charges. It is left entirely to the discretion of the superintendent for the time being whether to fix the rates according to the length of street frontage of premises; or their area; or by the number of fixtures connected; or by a combination of those methods; or pursuant to, any other plan which he may see fit to adopt. In short, the legislature has attempted to authorize the superintendent to levy the tax, and, not merely to collect a tax which it alone may levy. It cannot be done legally.
“The determination of the amount or rate of a tax to be imposed is as essential in exercise of the taxing power as the designation of the property to be taxed or the time for its collection or enforcement.” State v. Ashbrook, 154 Mo. 375, 389.
See also State v. Glavin, 67 Conn. 29; Reelfoot Lake Levee District v. Dawson (Tenn.), 36 S. W. 1041; Houghton v. Austin, 47 Cal. 646; People v. Kings County, 52 N. Y. 556; Bernards Tp. v. Allen, 61 N. J. L. 228; Van Cleve v. Sewerage Commissioners, supra; State v. Mayor, supra.
The contention has been made that mandamus would not lie in the event of our holding sections 1036 to 1038 to be invalid. We, cannot adopt that view. Section 1035 of the Revised Laws places the duty of superintending the connecting of premises with the public sewers upon the superintendent of public works. This provision is separable from the rest of the statute and is not involved in the illegal attempt to vest the superintendent with the power of taxation. Should the legislature exercise its power to levy a special tax upon premises connected with the sewers, the supervision of the sewers might still be an appropriate function of the superintendent of public works. Such supervision as it now exists does not extend arbitrary discretion to the superintendent to refuse permits to connect with the sewers. The sewer system of Honolulu was constructed ■with a view to its being used by property owners, and when owners of premises comply with all legal requirements they are, prima facie, entitled to have their applications for permission to connect granted. Under such circumstances the granting of such applications is a ministerial duty the failure to perform which may be enforced by mandamus. In re Akwai, 13 Haw. 239; Hackfeld v. King, 11 Haw. 5.
The order overruling the demurrer is affirmed and the case is remanded to the circuit judge for further proceedings in conformity -with this opinion.
