Lead Opinion
The questions involved in this case are of great importance to the state and to the people of the several counties, as they involve, among others, the question of the power of the legislature to impose upon the people of the several counties the expense of the maintenance' of insane persons at the state hospital, in addition to the general state tax levied for the purpose of maintaining this institution.
While we have carefully investigated all the questions presented, yet, for want of sufficient time at our disposal to discuss each one with that degree of care to which it seems to merit, we must be content with a very brief statement of our conclusions, without any elaboration.
From the agreed and stipulated facts it appears that the amount of tax levied by the state authorities has been sufficient to maintain the -hospital, paying all the expense of board, etc., of all the patients, so that it has not been a matter of absolute necessity for its maintenance that any further burdens should be imposed upon counties having patients there under the provisions of section 47 of chapter 40 of the Compiled Statutes of 1885. It must be borne in mind that ‘the question here is simply one of the power of the legislature to impose this tax. All suggestions as to its -expediency must be banished from the case. The legislative department, being one of the co-ordinate branches of the government of the state, cannot be controlled by the courts so long as it acts within its jurisdiction and the limitations of the constitution. In fact, within those limits it is the supreme and controlling power of the state, and both the executive and judicial must yield a willing obedience to its mandates.
It is insisted that as a levy of tax has been regularly made for the maintenance of the hospital, it is not within the power of the legislature to again tax the people of the several counties for the maintenance of the insane sent to
By the statement of facts agreed upon, it appears that the taxes imposed by the state at large are, and have been,, sufficient for the support 'and maintenance of the hospital,, and that in addition thereto each county is required to impose a tax sufficient to pay the expense of its patients-who are there confined.
It is clearly within the power of the legislature to provide for the maintenance of the insane by general taxation of the state, and to relieve the several counties from the burden, except as they bear their proportion with the other counties of the state; or to require each county to maintain its own insane in hospitals provided by them; or to pay the expense of the maintenance of their insane in a hospital provided by the state. In this each state has adopted the course which to its legislature has seemed most judicious. And we think it is clearly within the legislative power to provide by law and taxation, in the first instance, for the support of the insane by the state, and then require the counties, which otherwise would have to support the insane having a residence within their borders, to repay the-state the amount thus expended. Any other view would leave the care of this, the most unfortunate class of our citizens, to the will and caprice of the county boards of the several counties in the state, which would result in anything but a harmonious system of caring for them. We
Other questions are presented»by the very able brief of counsel for the respondent which require attention, and will be briefly noticed.
■ It is claimed that the tax required to be levied by section 47 is a state tax, and therefore the county has no authority to make the levy, and further, that such levy would be a violation of the fundamental requirement that taxation shall be uniform throughout the state. While it is true that the hospital for the insane is, as argued by the respondents, a state institution, yet, as we have seen, the maintenance of the insane is not necessarily a state burden, and therefore it is within the power of the legislature to require that the tax may be levied and collected by each county for the purpose of reimbursing the
Again, it is claimed that if the tax is a county tax, it is not competent for the legislature to make the levy, that such tax can only be imposed by county authority. This is true, but by an examination of the law it will appear that the tax is not levied by the state or its officers. The state auditor is required to notify the county clerk of each county the amount due from it to the state. The county is charged with the amount in gross. The proper estimates of the amount of tax necessary to pay the indebtedness are made by the county officers, and when the percentage of levy is ascertained by them, it is their duty to levy the tax and place it against the property in the county. The tax is not levied by the state but by the county, for the purpose of paying an indebtedness due the state and ascertained by its officers.
The suggestion that the imposition of the tax provided for in section 47 is in violation of the fourteenth aniendment of the constitution of the United States has, we think, been sufficiently noticed by the foregoing. There are no unequal exactions or burdens imposed by the section.
It is urged that-if the writ is allowed as jR’ayed for in this case, and the other counties of this state are required to pay the amounts charged to them, it will enforce the payment of a large amount of money into the state treasury which is not necessary, and has, virtually, already been paid in the form of taxation under the general tax levy of the state, as many other counties, like the relator, have failed .to levy the tax, or if levied and collected, to pay
By the stipulation of facts it is shown that a number of patients are, and have been, in the hospital, the charges for whose keeping are made to Douglas county, while the records show that the legal settlements of such persons were not in the county named. By section 23 of the act under consideration it is made the duty of the commissioners of insanity of each county to ascertain the legal settlement of insane persons, and certify the same to the
Fred Larson, legal settlement, unknown...........$ 113 72
Immanuel Harrison, same as above................. 37 15
Boraora Evans (or Homar), same as above........ 601 68
Cristina Halquist, legal settlement, unknown..... 1564 10
Marietta Albra (or Aubray), legal settlement, unknown, and so stand in commission’s warr’t.. 1537 23
Patrick Bickman, legal settlement found by the commissioners of insanity to be in Chicago.. 770 86
Amos B. Dunn, legal settlement found by commissioners of insanity to be at Minneapolis, Minn............................................. 50 29
Amos Robinson, legal settlement, unknown, and so stated in warrant of admission............ 89 16
Cornelius Morse, legal settlement, unknown, and so stated in warrant of admission............ 68 58
N. S. Minor, legal settlement, Erie county, • Penn., and so stated in warrant of admission 188 10
John Johnson, agreed to be erroneous.............. 22 29
John Bunse, legal settlement, Germany,-and so found by the commissioners of insanity..... 14 15
Making a total of. $5057 31
We therefore hold that under the law, as it now. exists, each county in the state is liable to the state for the support of all insane persons sent to the hospital from such county, having a legal settlement therein, and that it is the duty of the county officers to levy, collect, and pay over to the state treasurer the amount necessary to pay the same, and that it is the duty of the respondents to levy the necessary taxes within the constitutional limit to pay the same, which is found to be $31,499.03, unless by agreement of parties, or upon reference, if so- desired, a different sum shall be found to be due. But that no county is legally held for the support of those sent to the hospital by its officers, whose legal settlement is not in such county,
.As respondents have signified their willingness to abide the determination of this case and levy such tax as may be ordered without a writ being issued, the writ of mandamus will be withheld and not issued unless in case of a refusal to comply with the judgment of the court.
Judgment accordingly.
Dissenting Opinion
dissenting.
I am unable to give my assent to the conclusion reached by the majority of the court and will state the reasons for my dissent. Sec. 46 of the act for the government of the hospital for the insane provides that, “The board of trustees shall from time to time fix the sum to be paid per
Sec. 47 provides that, “ The superintendent shall certify to the auditor of state on the first days of March, June, September, and December the amount (not previously certified by him) due to said hospital from the several counties having patients chargeable thereto, and said auditor shall pass the same to the credit of the hospital. The auditor shall .thereupon notify the county clerk of each county so owing of the amount thereof and charge the same to said county, and the board of county commissioners shall add such amount to the next state tax to be levied in said county, and pay the amount so levied into the state treasury.”
Under these provisions the sum of $4.00 per week for each patient sent to the hospital was charged to the county sending the same, and this continued till December 1st, 1879, and since that time the charge has been $3.00 per week. It is conceded that the sums thus charged, if collected, will pay all expenses of the hospital. In B. & M. R. R. Co. v. Saunders County, 16 Neb., 123, and B. & M. R. R. Co. v. Cass County, 16 Neb., 136, this tax was held to be a valid charge against a county. So far as this case is concerned it can make no difference whether it is a county or state tax. It is in fact a charge against each county based on the number of patients sent to the hospital. It is not material whether called a state or county tax, as the money paid by the tax payers is levied and collected for the support of the hospital.
By the third paragraph of the stipulation of facts in this
It will be seen that the state officers in fixing the rate of taxation added to the general state tax the whole amount required each year for the support of the hospital for the insane. This tax has been collected each year and paid into the state treasury, and drawn out on the warrants of the auditor to defray the expenses of the hospital. The amount thus paid by Douglas county, so far as can be ascertained, is about equal to the aggregate of the charges against it for patients sent from that county to the hospital. That county, therefore, has, at least to the extent of the taxes above referred to, already paid and discharged the tax for the support of hospital for the insane. It is conceded that no part of the money now sought to be collected is necessary for the support of the hospital; but that as the statute makes the counties liable for patients sent by them to that place, that notwithstanding the expenses have
Only so much, therefore, as was necessary to supply any deficiency that may have arisen from inability to collect some portion of the sum charged against each county for patients sent by it to the hospital should have been levied as a general state tax for the support of the hospital. This would have been a very small sum. If any of the counties failed to levy the tax to pay the charges, proceedings by mandamus in a proper case would have compelled action. As the most of the counties of the state failed to levy taxes to pay the charges for patients sent by them, and from uncertainty no doubt as to the validity of the provision making patients a county charge, the state board have caused a sufficient amount to be levied each year to pay all expenses of the hospital. No doubt, under the circumstances, they were justified in doing this. But the tax thus levied and collected from a county for the support of the hospital should be credited to it against the charges for patients sent by it to the hospital. The legislature never intended that the amount charged against each county for patients should be collected, and also an equal amount for the same purpose — the support of the hospital — by a general tax. And the legislature, under our constitution, has no authority to impose double taxation. Sec. 1, Art. 9 of the constitution provides that, “the legislature shall provide such revenue as may be needful by levying a tax by valuation,” etc. And Sec. 19, Art. 3, provides that, “each legislature shall make appropriations for the expenses of the government until the expiration of the first fiscal quarter after the adjournment of the next regular session, and all appropriations shall end with such fiscal quarter. And when
Sec. 22, Art. 3, provides that, “ no money shall be drawn 'from the treasury except in pursuance of a specific appropriation made by law, and on the presentation of a warrant issued by the auditor thereon, and no money shall he •diverted from any appropriation made for any purpose, or ialcen from any fwnd whatever, either by joint or separate resolution,” etc.
The constitution limits the power of the legislature in Imposing taxes to such as may be necessary, and limits the time for which they may be imposed so that no appropriation can be made for a longer period than two years and a quarter. Sec. 9, Art. 3, also provides that bills appropriating money “shall originate only in the house of representatives.” Now, will it be seriously contended that as the legislature is restricted by the constitution to such appropriations as are needful, and possesses no power to divert money raised for one purpose to a different one, and has no authority to make an appropriation beyond the first fiscal quarter after the adjournment of the next regular session, that it can evade the law by indirection and impose twice the amount of taxes necessary -for any specific purpose. If so, a sufficient amount may be raised by direct tax to support the penitentiary, and a charge per capita against each county for the prisoners sent by it sufficient in the aggregate to pay all expenses, and the same rule may be applied’ to the deaf and dumb and blind asylums and other institutions of the state, and the treasury be filled with money for which there was no use whatever.
But it is said some of the counties have paid this tax, and others not, and it would be unjust to such counties as have paid to permit the others to avoid paying the tax. It appears that but a very small proportion of the counties have paid the per capita charge, there being less than $150,-000 in all collected. This the legislature can readily adjust by giving such counties credit upon the tax to be hereafter collected, so that there is no difficulty in that regard.
The attorney general has done well to call attention to-these matters, in order that the validity of law may be tested and the proper steps taken to prevent double taxation. The writ should be denied.