State ex rel. Howe v. Mayor of Des MoinesState ex rel. Howe v. Mayor of Des Moines
- Reporters:
- Before:
- Ejnne
I. The conceded facts in this case are as follows: The city of Bes Moines, a city o-f the first class, in 1882, by a vote of its electors, accepted the provisions of the statute of this state relating to- the establishment and maintenance of free public libraries, and had, in the ex-ercise of the powers conferred upon it, established and was maintaining such a library. In pursuance of law, a board of library trustees had been appointed and was exercising the powers and duties imposed upon it. On July 31, 1896, said board - of trustees did fix -and determine a rate of taxation of one mill on the dollar of the taxable valuation of the property in said city for the purpose of maintaining the public library ahd at the same time did fix and determine a rate of taxation of three mills on the dollar fox the. purpose of creating a sinking fund for the purchase of a lot and the erection of a library building, and -did cause said amounts so fixed and -determined to be certi‘fied to the city council of said city. -Said city council *78refused to levy and certify to the county auditor said amounts so certified to them by said board of library trustees, but did levy and certify one-half a mill tax for the purpose of the maintenance of the library. Thereupon this- action was brought to obtain a writ of mandamus compelling the city council to levy and certify the rates of taxes fixed and determined by the board of library trustees. A® is said by counsel for appellants. “The ultimate question to be ‘determined is whether or not the city council in cities of the first class accepting the provisions of the statute relating to the establishment and maintenance of free public libraries, and maintaining such’ library, is bound ‘and’ required to: levy and certify the amount of taxes or the rate of taxation fixed and determined by the board of library trustees of ®aid city.”
II. On the one hand it is’ contended that the statute vests in the board of library trustees, absolute power to fix and determine the amount of the levy to be made ■ for the purpose of maintenance of the library, and of creating a sinking fund for the purchase’ of a lot and the erection of a library building, subject only to the limitation® in the statute; and that the duty devolve® upon the city council to levy and certify the sum® so certified to them by ®aid board; that the city council is without any discretion in the matter. On the contrary, the appellees contend that the board of library trustees has no such power; that it© power in the matter is advisory merely, and that the city council is invested with a discretion a© to the amount or amounts which shall be levied for the purposes, mentioned. As in the discussion which may follow reference may be made to various act© of the legislature touching the creation and maintenance of free public libraries, it may tend to brevity, to here recite the substance of all such statute® which can have any bearing upon the *79question under consideration. Chapter 45, Acts Thirteenth General Assembly, provided, that cities of the first and second classes might levy an annual tax not exceeding one-lnalf mill on the dollar of the taxable property in such city for the maintenance of a free public library and reading room, provided a ¡suitable lot and building be first donated for such purposes. The city council was authorized to appoint officers for such library and reading room. The Fourteenth General Assembly, in chapter 47, extended the provision of the former act so as to include incorporated towns, increased the amount of the levy, and authorized all the municipalities referred to in the act, out of the money raised, to purchase land and erect buildings or lease room®. The act also provided that before exercising any of the power® conferred, it should be accepted by a vote of the people. The ¡same provisions, in substance; were incorporated in the Code of 1873 (section 461), in which it was declared that “the establishment and maintenance of a free public library is hereby declared to be a proper and legitimate object of municipal exp^enditure.” Such wa® the law in force at the time the electors of the city of Des Moines voted to accept it® provisions, and to establish .a free public library. By chapter 41, Act® Twenty-Fifth General Assembly, it was provided that in any city which had accepted the provision® of Code, section 461, there should be created a board of library trustees, to be appointed by the mayor, with the approval of the council. That act vested in said board full power of control over the library, including the power to appoint and remove librarian® and employe®; that they should have full power over the moneys raised for the library by taxation; and said act also contained the following, viz.: “The board of library trustees shall, before the first day of August in each year, determine *80and fix the amount or rate to be appropriated for one year under section 461 of the Code of Iowa for the maintenance of such library, ‘and cause the same so fixed to be certified to the council, and the council shall make such appropriation and levy the necessary tax for such year to raise said- sum and certify the percentage or rate not exceeding one mill on the dollar of such tax to the county auditor, * * * provided that in cities of the first class the city council may and shall levy and certify such further sum of tax as it may deem expedient to create a sinking fund and pay interest under the provision® of chapter 18, Acts of the Twenty-second General Assembly, and acts amendatory thereof.” By chapter 99 of the acts of the same general assembly power was conferred upon the city -to levy and collect a tax of not exceeding three mills on the dollar to pay interest on any indebtedness; theretofore contracted or to. be thereafter contracted or incurred for the purchase of real estate and the erection of a building or buildings for a public library, and ■ to create a sinking fund for the payment of such indebtedness. By chapter 5, Acts Twenty-sixth General Assembly, the tax was authorized to be collected annually. By chapter 50, Acts Twenty-sixth General ‘Assembly, it was provided that the board of library trustees .should determine and fix the rate, not exceeding one mill on the dollar, for the maintenance of the library, and not exceeding three mills on the dollar for the purpose of paying for a building and the creation of a sinking fund, and “cause each of the amounts’ or rates so determined and fixed to be certified to the council, and the.council shall levy the taxes necessary to raise said sums respectively for such year, and certify the percentage or rates ’ * * * of such tax to the county auditor.” In pursuance of the provisions of chapter 41, Acts Twenty-fifth General Assembly, a *81board of library trustees had. been appointed.- In March,-1892, the city of Bes Moines, as it then existed,by a vote Of’ the electors, ‘accepted the benefit Of the’ law relating to public libraries.- Prior to- the passage of the Acts of the Twenty-sixth General Assembly,—the! city council was cleai-iy invested with discretionary power -as to levying a tax for a library building and for the creation of a sinking fund. The act of the Twenty-sixth General Assembly, in terms, seems to require the council to levy and certify the tax certified to it for maintenance and for a building .or sinking fund, so long as the same does not -exceed the amount provided by the -statute.
*83The constitution of the state of Illinois contains the following provision: “The corporate authorities of counties, townships, school districts, cities, towns and villages may he vested with power to assess and collect taxes for corporate purposes.” Constitution Illinois, 1848, article 9, section 5. In construing this provision, the supreme court of that state said that the phrase “corporate authorities,” a© used in the constitution, must be understood as “those municipal officers who are either directly elected by the people to. be taxed, or appointed in some mode to- which they have given their assent.” People v. Mayor, Etc., of City of Chicago, 51 Ill. 17. The same court, in construing the same constitutional provision, said: “The power of taxation is, of all powers of government, the one most liable to abuse, even when exercised by the ‘direct representatives of the people ; and, if committed to people who may exercise it over others without reference to their consent, the certainty of its abuse would ©imply be a question of time. No person or class of persons can be safely intrusted with irresponsible power over the •property of others, and such a power is -essentially despotic in its nature, and violative of all just principles of government. It matter© not that, a© in the present instance, it is- to be professedly exercised for public uses by -expending for the public benefit the tax collected. If it be- a tax, as in the present instance, to which the persons who are to pay it have never given their consent, and imposed by persons acting under no responsibility of official position, and clothed with no authority -of any liin-d, by those lohom they propose to tax, it is, to the extent of -such tax, misgovernment of the same character which our forefathers thought just cause of revolution. We are of opinion that we do no violence to the language of the clause in the constitution we have been considering by holding that *84it was designed to prevent such ill-advised legislatiou as the delegation of the taxing power to any person or persons other than the corporate authorities, of the municipality or district to be taxed. These authorities are elected by the people to be taxed, or appointed in some mode to which the people have given their assent, and to them alone can this power be safely delegated.” Harward v. Drainage Co., 51 Ill. 130. In still another case, in which the constitutionality of the metropolitan police act of the city of East St. Louis, was under consideration, and in, which the police commissioners were ¡appointed by the act, and given power, not to levy a tax, but to estimate what sum of money would be necessary for each fiscal year to- enable them to, discharge the duties imposed upon them, and the act required the city council to appropriate and set apart the amount so certified out of the general fund of the city, and, in case the council failed so to do, then it was; made the duty of the board of commissioners to issue certificates of indebtedness in the name of the city for the amounts so certified, the court said: “These police commissioners are not the corporate authorities of East St. Louis, and therefore can have no power of taxation. They are not elected by the people of that city nor appointed in any mode to which the people have given their assent. The act creating them has never been accepted by the people or by the city council, but, on the other hand, as alleged in the bill, the council has, constantly denied the authority of the commissioners.” Hinze v. People, 92 Ill. 406. See, also, Updike v. Wright, 81 Ill. 49; People v. Morgan, 90 Ill. 558.
The legislature of the state of Kansas passed an act authorizing the creation of a board of road commissioners, and empowering them, among other things to levy-taxes. The act was held unconstitutional. Board of Commissioners v. Abbott, 52 Kan. Sup 148 (34 Pac. Rep. 416). The question of the constitutionality of the same *85act came before the federal court, and the court said: “Does the constitution of the state of Kansas authorize the legislature to delegate the power of taxation either to the signers of these petition® or to these road commissioners? Can a tax be absolutely forced upon these taxpayers of the county, either by the individuals or by officials in whose appointment they have had no voice? The power of taxation is a power inherent in all governments. In a constitutional government, the people, by the constitution, confer it on the legislature. It is one of the highest attributes of sovereignty. It includes the power to destroy. It appropriates the property and labor of the people taxed. Unrestrained power of taxation necessarily leads to tyranny and despotism. Hence, in all free governments, the power to tax must be limited to the necessities for the purposes of government, and the agencies for local taxation should be fixed, and their powers; limited, by organic law; and they should be so selected as to be directly answerable for their official acts to their local constituencies or districts to be taxed. If they act cor-, ruptly those directly interested may then remove them and appoint others. If those ‘directly interested have no voice in their appointment, or power to’ remove them, they have no- means of correcting their abuses. No other rule can secure those to be taxed from oppression and fraud on the part of the taxing officers. In McCulloch v. Maryland, 4 Wheat. 428, Marshall, G. J., said: ‘The only security against the ‘abuse of this power (the taxing power) is found in the structure of our government itself. In imposing a tax the legislature acts upon its constituents. This is, in‘general, a sufficient security against erroneous and oppressive taxation.’ This reasoning .applies with equal force to ■all kinds of taxation, and has been applied as well to local assessments or improvement districts as to’ taxes levied in local, political, - and municipal corporations. *86* * * Self-taxation, or taxation by officers chosen by or answerable to those directly interested in the district to be taxed, is inseparable from that protection of the right of’ property that is either expressly or impliedly guaranteed by all written constitutions under our system of government. Of all the powers of government the one most liable to abuse is the power of taxation. If placed in hands irresponsible to the people of the district to be taxed, its abuse is a mere question of time. * ‘*• * The act is a plain violation of the principle of self-taxation, and a clear invasion of the right of property. The legislature is not the fountain,— not the source, — of power. Under our system of government the legislature can exercise only such powers as the people have delegated to that body, either expressly or by necessary implication, by the constitution. All rights not so delegated are retained by the people. The right of life, liberty, and property is among the inherent and inalienable rights that the people did not commit to the legislature. Constitutions are adopted and governments’ .administered for the protection, and not for the destruction, of these reserved rights of the people. Illegal or oppr essive taxation is destructive of the right of property, and is not government, under the constitution; but is misgovernment.” Parks v. Board of Commissioners, 61 Fed. Rep. 436.
The legislature of the state of Michigan passed an act creating a board, of park commissioners to be appointed by the governor, with authority to create an indebtedness, and the act was. held unconstitutional. ■Mr. Justice; Campbell, in specially concurring with ■other members of the court, said: “I am not willing, however, to leave out of view an objection which has seemed to me quite as fundamental as the one referred to, and more dangerous, if that be possible, in its tendencies. I think the very essence of municipal *87existence consists in a government which allows no’ discretionary power beyond that of mere administration to be exercised without the immediate or ultimate control of the freemen or their immediate representatives. ‘A city is, and must be, a® I conceive, a unit for purposes of government; and all bodies employed in the service of the municipality, ¡and not directly represent-in g the freemen, must act as agencies subordinate to the council. If powers in any way involving the municipal prerogative can be given to any bodies except the common council, to the exclusion of any regulation or control of that body, they can all be so given, and the people may- be entirely deprived of representative government. It is a misnomer to apply that term to a system where there is any legislative power over which the people’s representatives have no control. A school district is as well organized a municipality as’ a city, and may co-exist with it in territory, in whole or in part, .a® a city may cover the territory of a county wholly or partially. There is no incompatibility between them, and both are separate, and in some sense independent,’^popular representative bodies exercising ‘different functions. The duties of the others are no part of the ordinary- concerns of town or city corporations. But from time immemorial every municipal government, properly so called, .and acting within its peculiar sphere, has- acted through its common council, composed either of the burgesses or their representatives, subject in some cases to checks- and vetoes, but not subject to legislation or final action in defiance of their own decisions. Their supremacy cannot be given up by themselves any more than it can be taken from them. No ¡doubt the state can limit their powers, but it cannot transfer them. The appointment and incorporation of boards as mere agencies -is competent, and may be very convenient. But making them anything *88but agencie® is a direct invasion of representative government, and would bring into existence a class of cities unknown to our constitutions, and very different from the municipal corporations recognized by our constitution .as the authorized! recipients of local legislative power. Whether the law of 1871 contains any provisions obnoxious to this principle, it is not necessary to discuss. But, if there are such provisions, I do not conceive they could be made valid by any recognition from the city. Concurring entirely in the general views of my Brother Cooley, I have not deemed it necessary to do more than indicate very briefly my views on the point which he has waived, which, in my judgment, is inseparable from the principles underlying the decisions heretofore made in People v. Hurlbut, 24 Mich. 44, and People v. Township Board of Springwells, 25 Mich. 153. I therefore agree in the conclusion of my brethren.” People v. Common Council of Detroit, 28 Mich. 228.
*89
Counsel for appellants rely upon, the cases of Mayor of Baltimore v. State, 74 Am. Dec. 572, and State v. District Court of Hennepin County, 33 Minn. 235 (22 N. W. Rep. 625). The latter case, in its facts, is so different from, the case at bar as not to support the contention of appellant; and the Maryland case sustained the constitutionality of an ‘act authorizing the board of police commissioners to levy and collect taxes for the support of the police department of the city. If this case is sustainable at all, it is upon the theory that the state may insist upon the proper exercise of the police power by a municipality, and, if the municipality fails so to do, the state may arbitrarily provide therefor. This is oh the theory that one of the objects of the government of the state is to preserve peace and good order.
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