State ex rel. Greenwald v. Hagerty

Cox, J.

Concurring with the opinion just expressed as to the duties of the board of commissioners and board of control as to the levy for general taxes, I am of the opinion that all acts passed since the act of 1872, establishing the board of control, giving authority to the county commissioners to make and improve roads, etc., do not come within sec. 999, giving the board of control final action over the commissioners’ acts.

The act establishing the board of control is not a general act. The law as it stood in 1879 was sustained by the district court of this county, in the case of State ex rel. v. Brown, 6 Dec. R., 740, on the sole ground that it was a special act, and not a general law, and this decision has not been overruled. It does not come, therefore, within the power given to general laws by statutory construction. It was within the power of the legislature to alter, amend, or repeal it, or to enact other laws which would neutralize it as to sp -cial matters.

In numerous acts since, the legislature had authorized, and in some required, the county commissioners to levy taxes for making and repairing special roads. These acts are special, and of as high authority as sec. 998, and in my opinion, are not to be construed together with sec. 999, unless the subsequent acts specially require it. In the case cited from the decision of the Supreme Court this question was not raised.

To hold where the legislature authorizes, or requires, the commissioners to lev3’ taxes for a road, and puts the funds arising therefrom in th?ir control, and when they do that which they are authorized to do, it shall not be valid unless ratified by a board created years before under an act of no higher authority than that giving the commissioners authority, would seem to me to be idle legislation.

Nor do I think that any taxes to be levied for the making or improvement of roads, or anything which may be called betterments, comes within the million-dollars limit of item 5-, sec. 1005.' It could not have been in the contemplation of the legislature in 1872, while fixing the limit at one million dollars at that time *18for county expenses, to say that the limit should forever remain, subject to be cut. down from time to time by the large and innumerable improvements in building; and road making, necessary in a large and growing county like this; nor do I think that in making the estimate to be sent by the auditor to the commissioners, in order to enable them to fix the levy, that he should include any such improvements as these. The levy, therefore, for these roads, as to percentage, is fixed, by the special act, and if made by the commissioners, it is to be put on the duplicate by the auditor as soon as he is notified by the commissioners that they have-authorized the levy to be made,

Morrell & Kuehnert and Foraker; Black & Rockhold; Rufus B. Smith;Frank Coppock, and Thos. F. Shay, for the several plaintiffs. Fred. Hertenstein, Asst. County Solicitor, W. M. Bateman and Gazzam Gano,, for defendants.