111 P. 734 | Mont. | 1910
delivered the opinion of the court.
On September 29, 1910, the board of park commissioners of the city of Helena, through M. H. Gerry, Jr., one of its members, presented to the district court of Lewis and Clark county an affidavit, in which it is recited that the persons named are the duly appointed, qualified, and acting members of the board and, together with the mayor of the city of Helena, constitute such board; that pursuant to the provisions of section 3319, Revised Codes, the board met in regular session and made an estimate of the amount of money which will be necessary to carry on the work of the board for the ensuing year; that such amount is $11,500 and is actually necessary for the work of the board; that to raise this sum will require a tax levy of not more than one mill on the dollar of the assessed valuation of the taxable property of the city; that such amount was duly certified to the city council of the city of Helena, on a date prior to the time when the city council was required to make the annual levy of taxes for city purposes; that when the city council met on September 19, 1910, to make the levy of taxes for city purposes, it failed and refused, and has ever since failed and refused, to make any levy whatever for park purposes or to meet the requirements of the park board. Upon the filing of this affidavit, an alternative writ of mandate was issued, and upon the return thereof the mayor and councilmen filed a joint demurrer and a joint motion to quash the writ. The demurrer and motion were sustained, the proceedings dismissed, and a judgment rendered and entered in favor of the defendants, from which judgment this appeal is prosecuted.
There is hereby presented for our determination the question of the validity of an Act of the Seventh Legislative Assembly, entitled “An Act Creating a Board of Park Commissioners as a Department of the City Government in Cities of the First Class,
1. The purpose of this Act, as indicated by the title, is to ■create a board of park commissioners in all cities of the first class. The board is composed of the mayor and six other members who are appointed by the Governor. The Act provides for the organization of the board, enumerates its duties and powers and the duties of the clerk. Section 2 of the Act provides: “Said board of park commissioners shall have the following powers and be charged with the following duties: * * * (6) To raise by taxation such a sum each year as the board shall determine to be necessary to defray the expenses of carrying out the work of said board not exceeding, however, in any one year a sum equal to an assessment of one-tenth of one per cent upon all of the taxable property of the city as the same appears by the assessment-roll of the county for said year.” Section 5 of the Act (section 3322, Revised Codes) provides that every year, on or before the day when the city council is required to make the annual tax levy for city purposes, the park board shall make an estimate of the amount of money necessary to be raised for park purposes, and shall certify the amount of such estimate to the city council, and “thereupon it shall be the duty of the city council to cause the sum stated in said certificate to be included in the assessment of city taxes for said year,” etc. It is not necessary to refer to the other provisions of the Act at this time. Subdivision 6 of ■section 2 of the Act above in express terms vests in this board of park commissioners the power and authority, to levy taxes for park purposes upon all taxable property within the city. There is not any discretion whatever left in the city council with
(a) Section 4 of Article XII of the Constitution of Montana provides: “The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town, or municipal corporation for county, town, or municipal purposes, but it may by law vest in the corporate authorities thereof. powers to assess and collect taxes for such purposes.” If this board of park commissioners is one of the corporate authorities of the city, within the meaning of those words as used in the Constitution above, then this Act does not violate the letter of the Constitution, otherwise it does; and the determination of this must rest upon the proper definition of those words, as understood and used by the framers of the Constitution in 1889. What were those words intended to mean? This question is not a new one. It has received1 the attention of the courts during the last half century. Many years before the adoption of our Constitution, the words “corporate authorities,” as used in section 4, Article XII, above, had been given a judicial definition. In 1869 the supreme court of Illinois, in Harward v. St. Clair Drain Co., 51 Ill. 130, was called upon to determine the meaning of those words as used in the Constitution of Illinois in the same connection as they are used in our Constitution above. In that case the statute under consideration created a board, named the members, and gave to the board taxing power. After much consideration of the question, the court expressed its determination as follows: “As the object of this constitutional clause was to prevent the legislature from granting the power of local taxation to persons over whom the population to be taxed could exercise no control, it is evident that, by the phrase ‘corporate authorities,’ must be understood those municipal officers who are either directly elected by such population, or appointed in some mode to which they have given their assent.”
(b) The framers of the Constitution must have understood the rule of law, which is universally recognized, that the exercise of the taxing power is the exercise of legislative authority; and, when they determined that the power to levy taxes for city purposes should be exercised only by the corporate authorities of the city, they must have meant by the “corporate authorities” those who constitute the legislative branch of the city government—at this time, the mayor and city council. In Nebraska an Act- of the legislature of 1881 provided that the corporate authorities of a city should have the power to license, regulate, and prohibit the liquor traffic in the city. Viewing this exercise of power as a legislative Act, the supreme court of Nebraska, in State ex rel. Fairchild v. Andrews, 11 Neb. 523, 10 N. W. 410, said: “By the term ‘corporate authorities/ as we understand it, is evidently meant those officers of the cities or villages to whom is given the- ordinance making power, which in cities of the second class, to which Crete belongs, are the mayor and council thereof.”
2. What view did the framers of our Constitution take of city government, so far as the taxing power is concerned ? Many years prior to the adoption of our Constitution, the question of the relation of a city to the state legislative branch of government, as affected by the exercise of the taxing power for local municipal purposes, had led to extensive litigation, with the result that two well-defined theories had been developed, vis.: (a)
(a) Speaking of this first theory, Gray, in his Limitations of Taxing Power (section 651), says: “The courts which assert the wider powers of the legislature in matters of local interest regard the local subdivisions purely as agencies of the state. They carry the doctrine that' the legislature is supreme in matters of taxation to its fullest extent. They regard the state legislatures as having the whole legislative power of the state, without any implied exceptions in favor of local self-government.” The states which adopt this view are Delaware (Coyle v. McIntire, 7 Houst. 44, 40 Am. St. Rep. 109, 30 Atl. 728); Georgia (Churchill v. Walker, 68 Ga. 681); Kansas (Wulf v. Kansas City, 77 Kan. 358, 94 Pac. 207); Nebraska (Redell v. Moores, 63 Neb. 219, 93 Am. St. Rep. 431, 88 N. W. 243, 55 L. R. A. 740); Texas (Brown v. Galveston, 97 Tex. 1, 75 S. W. 488); Pennsylvania (Philadelphia v. Fox, 64 Pa. 169); and North Carolina (Harriss v. Wright, 121 N. C. 172, 28 S. E. 269). A reference to the Constitution of each of the foregoing states discloses that there is not any limitation therein on the power of the legislature to control matters relating to municipal taxation, unless it be to fix a limit beyond which the tax levy shall not extend ; and every one of the f oregoing cases was decided upon the theory that, since the Constitution did not limit the exercise of the taxing power of the legislature in municipal affairs, the legislature could provide by law for the exercise of that power by means of any agency it should choose to create, even though in the selection of such agency the people to be taxed did not have any voice.
Ohio, Nevada, New York, Rhode Island, and Colorado are erroneously classed by some jurists and text-writers with the states above, and the cases cited to justify this classification are: State ex rel. Attorney General v. Covington, 29 Ohio St. 102; State ex rel. Rosenstock v. Swift, 11 Nev. 128; Town of Duanesburgh v. Jenkins, 57 N. Y. 177; Newport v. Horton, 22 R. I. 196, 47 Atl. 312, 50 L. R. A. 330; In re Senate Bill Providing
In the Nevada case it is held that an Act incorporating Carson City and naming the provisional or initiatory board of trustees was valid, but upon the subject of local self-government it was said: “Nevertheless, the principle of local self-government has always been, recognized, to a certain extent, by the legislature of this state in the passage of statutes creating and providing for the government of municipal corporations, and the selection of officers and agents to administer the affairs of such corporations has generally been intrusted to the electors of the respective municipalities, or their appointment committed to the authorities thereof; and it cannot, with propriety, be said that the legislature have wholly disregarded this principle in the passage of the Act under consideration, because by section 3 of the.Act the entire government of the city is vested in a board of trustees, to consist of five members, who are required to ‘be actual residents and owners of real estate in the city, and to be chosen by the qualified electors thereof.’ ” The court properly makes the distinction between the provisional officers who are merely agents of the legislature to set in motion the machinery of government, and the permanent officers of the city—a distinction that is recognized by the authorities generally. (Mechem’s Public Offices and Officers, sec. 123.)
In the early New York ease above, it was held that the legislature might compel a city to subscribe for shares of stock of a railroad company in aid of the construction of a railroad, and the decision is apparently based upon the theory that the building of the road was a public improvement in which the people generally were interested; but in the recent ease of Rathbone v. Wirth, 6 App. Div. 277, 40 N. Y. Supp. 535, the supreme court of that state quotes with approval from Black on Constitutional Law, section 131, the following: “The principle of local self-
Responding to a request from the legislature, the supreme court of Colorado expressed the opinion that an Act creating a board of public works for the city of Denver, the members of which were to be appointed by the governor, was not violative of the Constitution of Colorado; but in the course of the opinion it is said: “There is strong reason for recognizing, so far as may be compatible with the general public interests, the right of local self-government in cities and towns; but this is, with us, generally a matter pertaining to the policy or wisdom of proposed legislation, rather than a question of constitutional construction. "We must not, however, be understood as saying that any and every legislative interference with local municipal affairs would be free from constitutional objection.”
With these two theories thus established, the same question in principle as the one which confronts us came before this court in 1897, in Helena Consolidated Water Co. v. Steele, 20 Mont. 1, 49 Pac. 382, 37 L. R. A. 412. The question arose directly with reference to the validity of subdivision 64 of section 4800 of the Political Code of 1895 (Revised Codes, sec. 3259), which made it mandatory for a city in which-there was installed a water system to procure the existing plant if it desired to own or control a water supply of its own. In other words, the legislature sought to coerce a city to procure a particular water supply. The court, speaking through Chief Justice Pemberton, said: “ To purchase such plant or system necessarily requires the city or town to incur an indebtedness. When an indebtedness is incurred by a city or town, it necessarily requires the assessment of taxes upon the property of the inhabitants, and1 the collection thereof, to meet and discharge such indebtedness. Is such indebtedness or obligation such a one as the state has the right to impose upon a city or town, or compel a city or town to assume without its consent? A city or town is bound to do and perform, and may be compelled to perform, certain public duties. But there are certain local and private obligations and offices which a city or town may or may not perform, and which they cannot be compelled by the state to perform.” The court then reviewed at great length the decision of the Michigan, court in People ex rel. Board v. Common Council of Detroit, above, and the decision from Illinois in People ex rel. McCagg v. Mayor of Chicago, above, and with respect to.them said: “These two de
It will thus be seen that the theory of local self-government in matters of purely private concern as distinguished from the theory of absolute legislative control, was adopted in this state as early as 1897, and we think rightly so. We must assume that the framers of our Constitution had a purpose in view in denying to the legislature the right to levy taxes upon the property or people of any city for city purposes; and it cannot be imagined that they intended that what they had declared could not be done directly could nevertheless be accomplished by indirection. If the legislature can create this park board, and authorize the governor to appoint the members, by the same
In treating of our system of government, Bryce, in his work entitled “The American Commonwealth” (volume 2, page 611), says: “Nothing has more contributed to give strength and •flexibility to the government of the United States, or to train fhe masses of the people to work their democratic institutions, than the existence everywhere in the northern states of self-governing administrative units, such as townships, small enough to enlist the personal interest and be subject to the personal watchfulness and control of the ordinary citizen. Abuses have indeed sprung up in the cities, and in the case of the largest among them have become formidable, partly because the principle of local control has not been sufficiently adhered to. Nevertheless the system of local self-government as a whole has been not merely beneficial, but indispensable, and well deserves the study of those who in Europe are alive to the evils of centralization, and perceive that those evils will not necessarily diminish with a further democratization of such countries as Britain, Germany, and Italy.”
We cannot conceive of any purpose which the framers of our Constitution had in drafting section 4, Article XII, above, except to secure to the people of these cities that measure of local self-government which they enjoyed at the time the Constitution was framed and adopted.
The several constitutional limitations upon the authority of the legislature over city affairs, the adoption of the initiative and referendum as applied to municipal legislation (sections 3266-3276, inclusive, Bevised Codes), and the decision by this court in the case cited above, indicate that it is the public policy of this state to confide to the citizens of municipalities
In Gray on Limitations of Taxing Power, section 638, it is said that there are “eases in which the right of local self-government is asserted, but in which the courts differ as to what are matters of purely local concern.” We fail to see what general interest the people of this state as a whole have in the public parks of the city of Helena. Primarily at least, such parks are for the adornment of the city and for the pleasure and recreation of its people. While visitors may enjoy them freely as a matter of right, yet if that bare, intangible right is sufficient to create the public interest of the entire people of the state in these parks, then it is difficult to understand what is meant by the purely local and private concerns of a city. In People ex rel. Board v. Common Council of Detroit, above, the question arose over the right of the state to control the public parks of Detroit, through the agency of a park board, and the court determined that such parks are purely local concerns of the city, in which the people of the state do not share a common interest. The same thing is asserted in People ex rel. McCagg v. Mayor of Chicago, above; and these are the two cases chiefly relied upon by this court in Helena Consolidated Water Co. v. Steele, above, to justify the conclusion that a municipal water supply is likewise a strictly local or private concern of the city, as distinguished from one in which the people generally have a common interest.
Keference is «nade to the decision of this court in State ex rel. Quintin v. Edwards, 38 Mont. 250, 99 Pac. 940, wherein we upheld the validity of a statute creating a police commission. That case is typical of many asserting that the people of the state generally have such an interest in the preservation of the
In all of the states asserting the doctrine of local self-government, the distinction is made between the affairs of a city which are of a public nature—that is, those in which the people of the state have, with the people of the city, a common interest—and those private municipal affairs which are of a purely local character and primarily affect only the inhabitants of the particular city. All these courts recognize the right of the state, through its. legislative department, to coerce a city in the performance of a public duty, as distinguished from one of a private or local nature.
Our conclusion is that this park board is not a corporate authority of the city of Helena, within the meaning of the Constitution; that the purpose it was created to promote is a purely local or private concern of the city; and that in bestowing upon individuals in whose selection the people have had no voice the power to levy taxes upon the people who must pay them, and in attempting to coerce these people against their will to pay such taxes, the legislature not only violated the provisions of section 4 of Article XII, above, but did equal violence to the theory of local self-government which has been established in this state as one of the fundamental principles of our government.
The judgment of the district court is affirmed.
Affirmed.