Miller v. Henry, 124 P. 197

Miller v. Henry

124 P. 197 | Or. | 1912

Mr. Justice McBride

delivered the opinion of the court.

This case has been very fully and ably presented by. both parties and presents a situation at once difficult and delicate — difficult because the courts of this country are not in accord as to the extent to which the legislature can go in matters of this character, and delicate *7because we are called upon to pass upon the constitutionality of an act of a co-ordinate branch of the State government.

1. It may be premised that courts will not pronounce an act of the legislature void or unconstitutional unless such unconstitutionality clearly appears beyond a reasonable doubt. Cline v. Greenwood, 10 Or. 230; Kadderly v. Portland, 44 Or. 118 (74 Pac. 710: 75 Pac. 222) ; State v. Walton, 53 Or. 557 (99 Pac. 431: 101 Pac. 389: 102 Pac. 173) ; Straw v. Harris, 54 Or. 424 (103 Pac. 777).

The particular provisions of the constitution to which the act in question is said to be repugnant are: (1) Article I, § 21, which prohibits the passage of any law impairing the obligations of a contract; (2) Article I, § 32, which requires that taxation shall be equal and uniform; and (3) Article IX, § 3, which provides that “no tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied.”

We will consider -these objections in the order above stated.

2, 3, 4. It is contended that the bond of the treasurer is a contract with the county, and that this act releases him from the obligation of the bond, and therefore impairs the obligation of the contract. We cannot assent to this view of the law. A county is a subdivision of the State, created by the legislature for administrative purposes, and except as limited by' the constitution is subject at all times to legislative control. No citizen has any vested right in its revenues. These may be changed or diverted from one public use to another by legislative authority, and no citizen can complain that his contract rights are thereby impaired. The legislature might in the first instance have directed that county *8funds be deposited in banks, and in such event, that the treasurer should not be liable for their loss or diminution. What the legislature can do in the first instance it can afterwards ratify. Its action does not involve a question of power, but of public policy, of which it must be the sole judge. McSurely v. McGrew, 140 Iowa 163 (118 N. W. 415: 132 Am St. Rep. 248, and cases there cited.)

5. It may further be observed that the only bond required of a county treasurer is given, not to the county, but to the State of Oregon. Section 2963, L. O. L. While it is true that a right to have the benefit of the security, in certain instances, inure to the county, yet the fact that the legislature has required it to be taken in the name of the State indicates a purpose to retain in the lawmaking power a right to direct in some degree, not inconsistent with private rights, the instances in which the security may be utilized by its administrative agents.

The decisions of the various courts upon this subject are not harmonious, but it is believed that the great weight of authority as well as the better reason is to the effect that the legislature possesses the power to cancel liabilities of officers for money lost by them, when such loss was not occasioned by their unfaithfulness or willful misconduct. The following authorities support this view: 37 Cyc. 724; Meachem, Officers, § 913; Dillon, Munic. Cor. (3 ed.) § 75; McSurely v. McGrew, 140 Iowa, 163 (118 N. W. 415: 132 Am. St. Rep. 248); Pearson v. State, 56 Ark. 148 (19 S. W. 499: 35 Am. St. Rep. 91) ; Mount v. State, 90 Ind. 29 (46 Am. Rep. Í92; Sinton v. Ashbury, 41 Cal. 525; Creighton v. Board of Supervisors, 42 Cal. 447; Board of Education v. McLandsborough, 36 Ohio St. 227 (38 Am. Rep. 582) ; Town of Guilford v. Board of Supervisors, 13 N. Y. 143; *9People ex rel. Blanding v. Burr, 13 Cal. 343. The contrary view is indicated in the following cases: Bristol v. Johnson, 34 Mich, 123; People v. Supervisors of Onondaga, 16 Mich, 254; McClelland, Trustee, v. State, 138 Irid. 322 (37 N. E. 1089) ; Johnson v. Board, etc. 140 Ind. 152 (39 N. E. 311.)

The Michigan cases turn upon the construction of a clause in the constitution of that state, which is not found in ours, namely, “the legislature shall not audit nor allow any private claim or account.” The numerous decisions of other states not having this clause in their fundamental law are not referred to or distinguished. So it is plain that the court considered the provision quoted as controlling.

6. The next objection urged is that the act violates the constitutional requirement that taxation shall be equal and uniform. As the act proposes no tax and provides for no levy, it is difficult to see how this objection applies.

“Equality in taxation is accomplished when the burden of the tax falls equally and impartially upon all the persons and property subject to it, so that no higher rate or greater levy in proportion to value is imposed upon one person or species of property than upon others similarly situated or of like character.” 37 Cyc. 736.

“While all state taxes must be uniform throughout the state, and all local taxes uniform throughout the particular subdivision of the state by which they are levied, this does not mean that taxes for the same purpose must be imposed in different territorial subdivisions at the same time, or that one subdivision cannot be taxed for a particular local purpose unless the other subdivisions are also taxed.” 37 Cyc. 749.

Conceding, therefore, the possibility or probability that greater taxes must be levied by Union County on account of its inability to use the funds remitted in this instance, it does not seem that any principle of uniformity is violated.

*107. The last contention is that the act is in violation of that section of our fundamental law which requires that “every law imposing a. tax shall state distinctly the object to which it shall be applied.” It is conceived that this clearly applies to taxes levied by law for general State purposes, as for instance, the legislature could not pass a law providing that a general tax of five mills on the dollar should be levied, collected, and paid into the State treasury without specifying the purpose for which the levy was to be made, and this is the holding of the courts. “The constitutions of several states provides that every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied. It is held, however, that this applies only to the ordinary and general taxes for state purposes, and such as are imposed generally on all the taxable property in the state, and not to local taxes for local purposes.” 37 Cyc. 728; In re Ford, 6 Lans. (N. Y.) 92; Guthrie County v. Conrad, 133 Iowa, 171, (110 N. W. 454) ; Guest v. Brooklyn, 8 Hun (N. Y.) 97; Southern R. Co. v. Kay. 62 S. C. 28 (39 S. E. 785.)

8. The preamble to the act in question sets forth several reasons why in equity and justice the treasurer ought not to be compelled to bear the loss of this money, and in the absence of a- direct attack upon the truthfulness of these statements, such as was made in People v. Supervisors of Onondaga, 16 Mich, 254, we are justified in assuming that these statements are true. Whether, in any event, we would be justified in finding that the preamble of an act passed by a co-ordinate branch of the State government was untrue, is a matter which we are not now called upon to decide.

The decree of the circuit court is affirmed.

Affirmed.