57 Wash. 617 | Wash. | 1910
Lead Opinion
The only question presented by this appeal is the constitutionality of the state aid road law, found in Laws of 1907, p. 298; Rem. & Bal. Code, § 5880 et seq. The act provides that the county commissioners of .any county, upon presentation of a petition signed by the owners of two-thirds of the lineal feet fronting on any public highway, must pass a resolution that public interest demands the improvement of such public highway within such county. Such resolution shall be transmitted to the state highway board, who shall investigate and determine whether such highway is of great public utility and general convenience and, if so, they shall approve such resolution. The state highway commissioner shall thereupon prepare plans for the contemplated improvement, and submit them to the county commissioners, and if adopted, such improvement will be then undertaken under the direction of the state highway commissioner. The cost of the improvement shall be paid in the following manner: One-half out of the state highway fund, thirty-five per centum from the general road and bridge fund of the county, and the remaining fifteen per centum out of the district road fund of the district in which the improvement is located. The question was submitted to the trial court on the application for an injunction to enjoin the execution of a contract about to be executed by the state highway commissioner. To this complaint a demurrer was sustained, and, upon entry of judgment, plaintiff appeals.
The attack upon the law is made upon the theory that it violates the constitutional provision providing for local self-government, destroys uniformity of taxation, and diverts the proceeds of a tax. We do not so read the law. There will be no dissent from the assertion that it is not within the power of the legislature to take away from the several counties of this state the right of local self-governmeiit
It has been held, as suggested by appellant, that laws requiring the collection of taxes by a county, to be turned over to state officials to be expended for a purely state purpose, violate this constitutional requirement. But we have no such provision before us. County money is not raised and paid to the state for a purely state purpose. The road is a benefit to the state, to the county, and to the local district. The state raises money in the several counties to expend in the maintenance of those things which are of general benefit to all its citizens. The county reaps a special benefit as distinguished from this general benefit, and the district a still greater and special benefit, and for such benefit each is prop
Many of the states have similar laws, but so far as we can discover no state has held such law unconstitutional for any reason. The New Jersey law, Gen. Stat. p. 2902, which differs from ours somewhat in the detail of laying out the road, and provides for the payment of one-third of the cost by the state and the remainder by the county, was before the supreme court of that state in the case of United New Jersey R. Canal Co. v. Gummere, 69 N. J. L. 111, 54 Atl. 520, upon a certiorari to review an assessment. The assessment was sustained. The court, referring to the cases relied upon by the prosecutor to invalidate the assessment, says:
“Their purport is that where a statute under which the assessment is levied is unconstitutional, ... or where the tribunal confirming the assessment is without jurisdiction of the matter, for example, if it has failed to give the required notice, ... or where the circumstances are such that no assessment can constitutionally be made, then the statutory limitation will not bar. None of these grounds, nor any akin to them, appears in the present case. The statute provides for a constitutional assessment.”
Such language would seem to indicate that there was no doubt of the constitutionality of the law in the mind of the court, nor was such doubt suggested by the prosecutors.
Believing the law to be constitutional, the judgment is affirmed.
Rudkin, C. J., Fullerton, and Gose, JJ., concur.
Dissenting Opinion
(dissenting) — The act does take away the right of local self-government in this, that there is no provision of the law warranting the expenditure of county funds by any other than the board of county commissioners. The fact that the board invites the improvement does not meet the full intendment of the law. It is the intent and purpose of the constitution as well as the statute, Rem. & Bal. Code, § 3890, subd. 5, “to allow all accounts legally chargeable against such county not otherwise provided for, and to audit the accounts of all officers having the care, management, collection, or disbursement of any money belonging to the county or appropriated to its benefit”; that county funds shall be expended only for strictly county purposes and upon proper vouchers, audited by the board of county commissioners. Under the present law, funds collected by the county for special uses are put at the unrestrained disposal of a board in no way responsible to the local taxpayer. In the case of Davies v. Board of Supervisors of Saginaw County, 89 Mich. 295, 50 N. W. 862, the general principle was laid down that any law which undertakes to destroy the function of the local governing board is unconstitutional. Speaking of a similar law, the court said:
“It seeks to divest certain local officers, recognized as such and provided for by the constitution, of the function of their offices, and to confer those functions upon a board, appointed by a power removed from that locality, and not responsible to local authority. The functions of township officers who are continued by constitutional enactment are as clearly, within the contemplation and protection of the constitution as are the officers themselves, and the legislature has no more power to deprive those officers of their authority, and confer that authority upon officers not of local selection, than it has to abolish the offices. It is just as essential to local self-government that the functions of elective officers be preserved to such officers, as that the right of election be protected; indeed, it is the local management of local concerns, by and through the medium of officers of their own selection, that is sought to be protected. Strip the officers of a munici
See, also, Cooley, Const. Lim. (4th ed.), ch. 8.
It will not be contended that the state could levy a direct tax upon a particular county for the purpose of aiding state roads. Therefore any law that provides for the diversion of a fund collected by the county, to the disbursing officers of the state, annuls not only the provisions of the law defining the duties of county commissioners, but evades section 12 of article 11 of the constitution. It does indirectly that which could not be done directly and should be held to be void.
