109U.d3.497, 3Sup.Ot. 327. Thill probate had not been made when the suit at bar' was brought. It therefore follows 'no cause of netion existed to cancel the wilL The defendant demurred to this ground of relief. The cause of demurrer stated was "that the said matter is within the jurisdiction pertaining to courts of probate, and is not within the jurisdiction of this court, and does not contain sufficient matter of equity whereupon the court can ground any decree in favor of said complainants, or give complainants any relief against these defendants." This is not very. clear, but, interpreting it by the brief of appellants' counsel, the point was not intended to be made that the United States circuit ,court had no jurisdiction because there had been no preliminary probate, but that the relief sought was essentially a matter of probate, and resided exclusively in the state court having, probate jurisdiction. The demurrer was overruled, the court fiJing no opinion. On the 27th of l\farch, 1889,-23 days after the bill WaS filed,-the will was , probated in the first instance in the proper county court of Oregon. and this fact alleged in a plea in abatement, and that it was established as the last will and testament of P1).ilinda Terwilliger. and that the decree of ,the court had not been reversed or appealed from. -The plea was held insufficient. ltsallegations were substantially repeated in the answer which was filed at the same time as the plea. It will be observed that the plea and the answer repeating it were based on the same ground as' the demurrer,-that a court of equity had no jurisdiction. The answer, however, brought into the pleadings the necessary condition of the maintenance of the suit, and on this fact, with the others proved, I think it was competent to the court to give relief. It was sufficient if the court had' jurisdiction at the time the decree was entered. Railroad Co. v. Ketchum, 101 U. S. 298. The decree, however, should be modified. It follows the prayer of the bill, and not the case as made. It should have adjudged the will invaJid, and the revocation of its probate in accordance with the relief given in the Oregon courts.
PARKS v. BOARD OF COM'RS OF WYANDOTTE COUNTY. FIRST NAT. BANK OF LANSDALE v. SAME. ,Circuit Court, D.Kansas, First Division. Nos. 6,766, 6,864.
CoNSTITUTIONAL LAW-DELEGATION OF TAXING POWER-ROADS. Acts Kan. 1887, C. 214,' which provides that, if the resident
May 16, 1894.}
landowners within half a mile on eIther side of a road shall petition the county commissIoners to Improve the road, the latter shall appoint three road commissioners to take charge of the Improvement and assess two-thirds of the expense against the lands In the dIstrIct, the balance to be paid out of the general county fund, Is an unconstItutionat delegatIon of the taXing power, sInce Const. Kan. art. 2, § 21, which declares that "the legislature may confer upon trl,bunills transacting the county business of the several countIes such powers of local legIslation and admInistration as It shall deem expedlent,n necessarIly precludes any implication of authority to
BOARD OF COM'RS.
delegate to road. commissioners or to resident landowners near a road Board v. Abbott the power of taxing all the property in the . (Kan.) 34 Pac. 416, followed.
Certificates of indebtedness issued by a county by virtue of an unconstitutional law are void.
In Equity. On demurrer. Suits by Clarence A. Parks and the First National Bank of Lans· dale, Pa., respectively, against the board of commissioners of Wyandotte county, Kan. Buchan, Freeman & Porter, for plaintiffs. McGrew & Watson, for defendant. WILLIAMS, District Judge. The bills in these causes seek to recover against the county of Wyandotte upon instruments in writing executed by road commissioners appointed by the. county commissioners under an act of the legislature of the state of Kansas entitled "An act for the improvement of county roads" (Acts 1887, c. 214). The county commissioners filed answers to the bills, setting up the unconstitutionality of the act, and denying that tb/l persons who signed the instruments had any authority in law h' execute them. The complainants demurred to the answers. The act provides that whenever a majority of the resident landowners within one-half mile on either side of any regularly laid-out road within the terminal points mentioned in the petition shall petition to the board of county commissioners of any county for the improvement of a road it shall be the duty of the county commissioners to appoint three road commissioners, resident landowners of the county, to take charge of the improvement. In payment for work done or materials furnished the act authorized these road commissioners to issue certificates bearing interest at the rate of 7 per cent. One-third of the expense of the improvement was to be paid out of the general county fund, and two-thirds to be assessed by these road commissioners against the lands in the district, according to the benefits. By the terms of the act, a few landowners along any road might set in motion the machinery of taxation, and tax the whole county; and at the same time tbe act delegated to these road commissioners the power to assess tbe lands of the district. Local assessments are an exercise of the taxing power. Cooley, Tax'n, 623, 624. The rule that legislative authority cannot be delegated applies to local assessments, the same as to other taxes. Id. 655 Does the constitution of the state of Kansas authorize the legislature to delegate the" power of taxati'On either to the signers of these petitions or to these road commissioners? Can a tax be arbitrarily forced upon the taxpayers of a county, either by individuals or by officials in whose appointment they have no voice? The power of taxation is a power inherent in all governments. In a con· stitutional 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; Unl.'estrained power of taxation necessarily leadS' to tyranny and despotism.II;epce, 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 a,n$,werable for their official acts totbeix,constituencies or districts to be taxed. If they act corruptly,' 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 Gfficers. In McCulloch. Maryland, 4 Wheat. 428, Marshall, C. J., said:
"The. only llecm'lty against tile abuse of this power [the taxing power] Is found In the structure of our, government itself.. In imposing a tax the leg. Islatureacts upon its constitUents. This Is, hi general, a suflicient security - against erroneous and oppressive taxation."
This reasoning applies with equal force to all kinds of taxation, aud has been applied as well to local assessments or improvement districts as:to taxes levied in local, political, and municipal corporations. Wilcox v. Paddock, 65 Mich: 23, 31 N. W. 609; Harward v. ,Drain Co., 51 Ill.lSO; People v. Hurlbut, 24 Mich. 88108; People \7. Township of Springwells, 25 Mich. 153; Board of Park v.Common Council of Detroit, 28 Mich. 228; Schultes v. Eberly, 82 Ala. 242, 2 South. 345; Pope v. Phifer, 3 Heisk. 698, 699. Self-taxation, or taxation by officers ,chosen by or answerable to those directly interested in the district· to be'taxed, is inseparable frolD that protection of the right of. property that is' either expressly or impliedly guarantied 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 tothepeople.of the district to be taxed, its abuse is a mere question of time. If taxes may be forced on the people ofa whole county,' arbitrarily, by a few people signing a petition, it is. plain .that the people of the county,being the district to be taxed, have no voice in or control over the tax. There is no limit to the cost of these improvements, and the taxpayer is absolutely without means to check or control abuses that naturally follow arbitrary. and irresponsible power over the property of others. The act is a plain violatiOn,of the principle of seWtaxation, and a clear invasion of the right of property. The people, by the constitution, did· not· authorize the legislature to so jeopardize the right of property. The legislature·is not the fountain-not the sourceof power. Under our system of government the legislature can exercise only such powers as the people have delegated to tbat body, either expressly or by necessary implication, by the constitution. All. rights not so delegated .are retained' by the people. The right to 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 pro-
PARKS tl. BOARD OF COM'BS.
tection, and not for the destruction, of these reserved rights of the people. People v. Morris, 13 Wend. 328; 1 Blackw.'Iax Titles, §§ 15, 16. Illegal or oppressive taxation is destructive of the right of property, and is not government, under the constitution; but is misgovernment. ''We suppose it will be conceded by everyone that the legislature have no inherent power of any kind; that they possess no power except such as is delegated to them by the people; and that, unless the constitution of the state authorizes them to enact such a law as the one now under consideration, they had no authority to do so." Leavenworth Co. v. Miller, 7 Kan. 489. The conferring on the legislature of the sovereign power to tax is for the purposes of government. In pursuance of the purposes of government, the legislature may delegate the power to cities, towns, and villages. Cooley, Tax'n, 63. If not expressed in the constitution, this power to delegate exists by necessary implication, for the reason that counties, cities, towns, and villages are parts of the machinery of state, and the delegation of the taxing power to them is necessary in the administration of the state government. In some states the power of the legislature to delegate the taxing power is not left to be supplied by necessary implication, but the people, by the constitution, expressly authorize the delegation of the taxing power to certain agencies named in the instrument. The constitution of Kansas fixes the agencies for local taxation, and the limit of their powers is well defined by the two following provisions:
"Sec. 21, art. 2. The legislature may confer upon tribunals transacting the business of the several counties such powers of local legislation and administration as It shall deem expedient." "Sec. 5, art. 12. Provision shall be made by g-enel'al laws for organization of cities, towns and villages and their power of taxation, assessment, borrOWing money, contracting debts 'lnd loaning their credit, shall be so restricted as to prevent the abuse of .:;uch power."
The express authority here granted precludes any implication of the authority to delegate the power of taxation to any other agencies than those named. Keesee v. Board of Ed., 6 Cold. 127; Harward v. Drain Co., 51 Ill. 130; Updike v. Wright, 81 Ill. 49. There is nothing in either of the sections to authorize the delegation of the power to tax, or the power to make these special assessments, to the signers of these petitions for the improvement, nor to the road commissioners. Neither of these bodies is the tribunal that transacts the county business, nor is the improvement within any organized city, town, or village. The constitution not having authorized the legislature to so delegate the taxing power, no such authority existed. Schultes v. Eberly, 82 Ala. 242, 2 South. 345; Cooley, Tax'n, 61; 1 Desty, Tax'n, 419; 1 Blackw. Tax Titles, 118. The road commissioners, by the terms of the act, need have no interest in the improvement, nor does the power that appoints them have any interest in the district to be assessed. The road commissioners are in no way answerable for their acts to the owners of the lands ofthe district, nor have the taxpayers of the county any discretion, voice, or control over the. affairs of the district, although they
pay one-third of the cost. It is an arbitrary proceeding. The majority of any small distrkt may force the tax: upon the whole count:y. Since the filing of bills the supreme court of Kansas has held this act unconstitutional in the case of Board v. Abbott, 34 Pac. 419. The court in this,case said:
"The act gives a majority of the resident landowners of a special and small taxing. district, established at their instance, the power to subject the land and pel'sonal property within the district, to two-thirds of the cost of improving llny ,county road in the district, according to the benefit to the land and personal property within such taxing district; and, in addition, gives such resident landholder in such special and small district the power to compel all the taxpayers of, the CQunty to pay' one-third of such special taxes and assesslllent\il, wi1;hout having, any, voice, ,either through their own votes or through'the action of any county or other elected officers. * * · Only a' part interested have llny authority. They can, under this statute, impose taxes or, Special assessments on other taxing districts and on the whole county, without any right,of s\lch other taxing districts to vote, or the county as a whole to have any voice in, the proceedings."
I fully concur with the
of the supreme court of Kan·
The act being unconstitutional, what is the standing of the instruments sued :on? "An unconstitutional act is nota law. It confers no rights; it imposes no duties; it affords no protection; it creates no office; it iS,in legal contemplation, as inoperative as though it had'neverbeen passed." Norton v. Shelby Co., 118 U. S. 441, 6 Sup. Ct. 1121. The road commissioners were authorized, by section 6 of the act, to issue certificates for work done or materials furnished. The instruments sued on certify that the county of Wy· andotte is indebted to and, promises. to pay the bearer the sum named in ea,ch' certificate. These certificates all refer to the act, and recite, what they were given for, and are signed by the road commissioners. The act being unconstitutional, it created no authority in the road commissione,rs. They in no way represented the councould nom,orebind the county than the ty, and their signatures of any other of the county. The face of the certificates contained the ,evidence of their invalidity, and were notice to every person receiving them that they were invalid. As there was no law authorizing tlie county, to enter into such contracts, and the instrumellfs sued on not having been executed by any authority that represented the, county, they not be ratified. :Marsh v. Fulton Co., 10 Wall. 677; Risley v. Village of Howell, 57 Fed. 544. 'l'hese certificates cannot be a charge against the county. The demurrers to the answers are overruled.
PUTNAM v. JACKSONVILLE, L. & ST. L. RY. CO. et al. (CirCUit Court, S. D. illinois. December 8, 1893.) Upon bill to foreclose railway mortgage, and for appointment of a. receiver, filed by a bondh()lder, alleging that tlie xqortgagor railway com pany had made default'in the payment of taxes lawfUlly levied and imOF A RECEIVER OF RAILWAY.