State ex rel. Attorney General v. County Commissioners , 18 Neb. 601 ( 1886 )

Reese, J.

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 it from such counties; that it is double taxation, and in effect a confiscation of the property of the citizen, and that all such taxation must necessarily be void. It must be conceded that if the tax is in excess of the power of- the-legislature it is void, and if it is a double tax for the same-purpose it is in excess of the legislative power, and therefore void. "While our judgment may not, and does not, approve the method adopted for the support of the hospital for the insane, and while it would seem that the burden is-made unnecessarily heavy, yet, as we have suggested, the-question of propriety is for the legislature.

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 have carefully examined all the authorities cited by the respondent, and are unable to arrive at any other conclusion. This seems to be the policy of our state, and we think the right to adopt such a policy cannot be successfully questioned. The wrong, if any exists, seems to be an error of judgment in the amount of tax necessary to be levied by the state to insure the carrying out of the purpose of the law. This may be in part the result of oversight, or it may have become necessary by the failure of the several counties .to collect and pay over the amounts required by the section (47) above referred to. Perhaps the latter. Again, there, are many patients whose residence cannot be ascertained, and for whom- provision must be made. It would be clearly unjust to require the county in which the insane person is apprehended to pay the ' expense of his maintenance; this must be done, if at all, by state taxation. It is very properly provided by section 48, Id., that the estates and relatives of insane persons, when able to do so, shall reimburse the county for the money paid, thereby making the counties the losers only to the extent of money paid out for those who are unable to support themselves.

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 state, and we think it is also within the power of the legislature to require the tax so levied to be placed with other taxes going to the state in order that it may be withdrawn from the control of the county officers, and set apart at the outset to the use for which it is levied. This being true, the requirement of uniformity is not violated, as the tax is uniform throughout the taxing district in which it is levied. This is all that is required.

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 the same to the state treasurer. This fact may account for the high rate of taxation made necessary for the support of the hospital for the insane. If the tax had been levied, and the money paid over by the county treasurers as required by law, it would have materially affected the levy by the state board of equalization, for we must presume they were governed by the actual necessities of the case, and by their official oaths. Section 75 of the revenue law (Chapter 77,, Compiled Statutes of 1885) provides that the rate of general state tax shall be sufficient to realize the amount necessary to meet appropriations. It cannot be supposed that the state board of equalization will impose an unjust or oppressive tax, or that they would levy the full amount necessary to meet all the expenses of the state institutions, if a large amount of money was in the treasury to the credit of the funds from which the appropriations were made, but, in the language of the statute, “an amount necessary to meet the appropriations” would be the full measure of their duty. An unreasonable excess could and should be controlled by the courts. We fully agree with counsel that it is not in accordance with the spirit of the institutions of this country that large amounts of money should be wrung from the people by taxation and placed in the public treasuries, for such a condition is universally followed by extravagance in public expenditures. But this must, in the first instance at least, be left to the wisdom of the proper department of the government.

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 superintendent of the hospital. If it is not in the county, the expense of his maintenance should not be charged to it. It is also provided that if the legal settlement is in another county in the state, the expense should be charged to such county ; and by section 27, it is provided that if the insane person has no legal settlement, or if the settlement cannot be ascertained, the person shall be supported at the expense of the state. By this the county commissioners of insanity are the judges of the place of legal, settlement. There is no suggestion of want of good faith on their part, or a failure to honestly decide the questions before them, yet we find that these provisions of the law have been ignored, and Douglas county is called upon to answer for the maintenance of persons for whose support they were, and are, in no sense, legally bound. Of this class we notice the following:

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

Which is sought to be imposed upon Douglas county by the management of the hospital, without any authority of law. The fact that the examining physician may have certified that the legal settlement of some were in Douglas county can afford no authority for the charge’. The law makes it the official duty of the commissioners, and their finding and certificate must control, unless it should be made to appear that they were untruthful upon a further investigation of the facts.

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.