People v. Parks

McKee, J.:

The question presented for consideration in this case involves the constitutionality of an act of the Legislature entitled, “An Act to Promote Drainage,” passed April 23d, 1880. It is contended that the act is unconstitutional and void, and is no law, because it contravenes section 24 of article iv, of the Constitution, which requires that every act shall embrace but one subject, which shall be expressed in its title.

In the consideration of such a question, it is a cardinal rule that nothing but a clear violation of the Constitution will justify a Court in overruling the legislative will. Every statute is presumed to be constitutional, and every intendment is in favor of its validity. (Bourland v. Hildreth, 26 Cal. 161.) When a statute is challenged as in conflict with the fundamental law, a clear and substantial conflict must be found to exist to justify its condemnation; but when found, Courts must not hesitate to condemn. The Constitution is the voice of the people speaking in their sovereign capacity, and it must be heeded. When it speaks in plain language with reference to a particular matter, it must have effect as the paramount law of the land. (Matter of N. Y. E. R. Co., 70 N. Y. 342; Warner v. Beers, 23 Wend. 166; People v. Albertson, 55 N. Y. 54.)

1. According to the constitutional requirement for the enactment of statutory law, the title of every bill introduced into the Legislature must denote the subject of legislation; and when the legislative will on that subject has assumed the form of law, its provisions must correspond with the subject, of which the title is the name, standing for and representing it.

*636 The title of the act under consideration fairly indicates hut one subject. As expressed in the title the whole object of legislation is “ to promote drainage.” Any one, after reading the title, would naturally expect to find in the body of the act, provisions for carrying that into effect as the whole object of the law; because such provisions, in view of the constitutional provision referred to, would be necessary to give unity and wholeness to the law. Provisions of an act may be numerous; but however numerous, if they can be, by fair intendment, considered as falling within the subject-matter of legislation, or necessary as ends and means to the attainment of the subject, the act will not conflict with the Constitution. But if the act shall be found to be made of incongruous parts, or to comprehend unconnected and dissimilar subjects to that expressed in its title, it can not be upheld. Under such circumstances, the title would not be a fair indication of the measures enacted, nor would the act itself be an honest expression of the legislative will, according to the forms of the Constitution. There would be wanting that unity of title and subject necessary to a constitutional law.

Looking beyond the title to the provisions embodied in the act under consideration, it will be found that they embrace more than one subject; and the question is, whether all of them fall within, or any one of them falls without, the subject expressed in the title.

By section 1, a Board of Drainage Commissioners is appointed to divide the State into several drainage districts and to establish the boundaries thereof (§ 3), and to organize each district (§§ 1-3), for the purpose of - carrying into effect the following objects, viz: “ The control of debris from mining and other operations; the improvement and rectification of river channels; and the erection of embankments • or dykes necessary for the protection of lands, towns, or cities, from inundation.” (§ 2.)

Of the board thus established, the Governor of the State was appointed President, and.to him, as Governor, was given power to appoint, within ten days after the organization of any drainage district, three persons residents of the district to act as a Board of Directors for the district, each of whom was to receive a salary of one hundred dollars per month, *637 and to hold office for four years, and until his successor was appointed and qualified. (§§ 4, 5.) To each of such Boards of Directors, after it had organized by the election of a President, and each of its members had taken the oath of office, and given bond according to the provisions of section 4, power was given to appoint a Secretary and a District or Resident Engineer, and to fix their salaries (§§ 5, 13); to determine upon, with the aid of the State Engineer, a system or plan of works to be constructed in its district (§§ 7, 8); to agree upon and adopt plans and specifications for such works (§ 8); to award contracts for the construction of the same, upon the basis that no Chinese or Mongolians shall be directly or indirectly employed on them (§ 9); to take from any citizen within the district who might consent to the same, and, if his consent could not be obtained, to purchase from him any material necessary for the construction of any of the works; and to appropriate any lands which might be considered necessary for the right of way for any of the works for the drainage of the district, or “ on which to construct reservoirs for storing debris from the mines, whether the same be within or without the boundaries of the district.” (§ 11.) And, whenever acquisition of the right of way, or of material needed for the construction of levees, or reservoirs for the storage of debris, or of lands for the construction and completion of the system or plan of works adopted, could not be had from the owners, the board was authorized to institute proceedings, in the name of the district, for the condemnation of such right of way, material, and lands, under the provisions of the Code of Civil Procedure regulating the exercise of the power of eminent domain. (§ 12.) And, to defray official salaries, and the cost and expenses incurred in the scheme of improvements for each district, each board was empowered to raise money, in exercise of the powers of assessment and taxation, by levying a tax upon all the property of the district to the extent of one twentieth of one per cent, on the value of the taxable property therein, and an assessment upon all the hydraulic mines, and all mines washing earth or ores with water, of one half of one per cent, for each miner’s inch of water of each twenty-four hours’ run used during the year; and upon all swamp and overflowed lands in the *638 district to the extent of not exceeding three dollars per acre. (§§ 15-23.) In addition to which, provision was made in the act for the levying of a State tax, in the year 1880, and each year thereafter, of one twentieth of one per cent, on all the taxable property in the State. (§ 24.) All these assessments and tax,es were made collectible and payable as State and county taxes. But the moneys thus raised were to be used " exclusively for the construction of dams for impounding the debris from the mines hereinbefore specified, and for the improvement and rectification of river channels, in which said debris flows within the drainage district to be formed under the provisions of this act, at such points thereof as shall be designated by the State Engineer, or deemed necessary by the Board of Directors of such drainage district.” (§ 24.) _

_ It will thus be seen that the body and scope of the act include a combination of subjects. The construction of reservoirs for the storage of debris from mines, the protection of lands, towns, or cities from inundation by the erection of embankments or dykes, the drainage of certain districts of the State by the rectification of river channels, and the levy of special taxes to carry on a system of public works, are all inseparably conjoined in the body of the act. The extraordinary powers conferred upon the District Board of Directors are to be exercised for the benefit of all the subjects conjointly; and the money to be raised by the exercise of these powers is to be expended for all without distinction as to any particular ones, thus rendering it impossible to disjoin the subjects embraced in the act, which are not expressed in its title, from the subject expressed in the title, so as to adjudge the one void and the other valid, as might be done under section 24, of article iv, of the Constitution.

Nor are all the subjects of the act such as would naturally fall within the subject of its title. The storage of debris, “from mining and other operations,” seems to be the paramount object of the act, to promote drainage the subordinate. What the phrase “ other operations” may mean is not clear from the act itself. Under it may be concealed many subjects which are not expressed in the title; and the existence of such a phrase in a statute renders it obnoxious to the con *639 stitutional provision under consideration. But the storage of debris, and the promotion of the drainage of a district of country, are things essentially different. The one has no necessary connection with the other. To drain land is to rid it of its superfluous moisture. This is generally done by deepening, straightening, or embanking the natural watercourses which run through it, and by supplementing them when necessary by artificial ditches and canals; but it is not within the art of the drainer to promote drainage by building reservoirs for the storage of debris from “ mining and other operations,” unless the word is to be wrenched from its geological or ordinary signification and meaning, and changed so as to mean water, at any mining or other locality where debris may have accumulated.

Besides, the storage of debris is, in its nature, a private enterprise in which the few only are interested. The drainage of a State is a public purpose in which the public may be interested. To promote a public purpose by a tax levy upon the property in the State, is within the power of the Legislature; but the Legislature has no power to impose taxes for the benefit of individuals connected with a private enterprise, even though the private enterprise might benefit the local public in a remote or collateral way. Legislative power of taxation is not illimitable. It can be used only in aid of a public object—an object which is within the purpose for which governments are established. In the vigorous language of the Supreme Court of Pennsylvania, “ the Legislature has no constitutional right to levy a tax, or to authorize any municipal corporation to do it, in order to raise funds for a mere private purpose. No such authority passed to the Assemby by the general grant of the legislative power. This would not be legislation. Taxation is a mode of raising revenue for public purposes. When it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder.” (Sharpless v. Mayor etc., 21 Penn. 168.)

At the least, then, two heterogeneous subjects are embraced in the act, one of which is not expressed in the title, and they can not be segregated. The title does not express the objects of legislation embodied in the provisions of the act. It *640 is, therefore, narrower than the body of the act, and fails to impart that notice of the measures enacted, which the Constitution requires. To prohibit such legislation was the sole end and aim of the constitutional requirement. “ The practice,” says the Supreme Court of Missouri, “ of comprising in one bill subjects of a diverse and antagonistic nature, in order to combine in its support members who were in favor of particular measures, but neither of which could command the requisite majority on its own merits, was found to be not a corruptive influence in the Legislature itself, but destructive of the best interests of the State. But this was not more detrimental than that other pernicious practice, by which, through dexterous and unscrupulous management, designing men inserted clauses in the bodies of bills, of the true meaning of which the titles gave no indication, and by skillful maneuvering urged them on to their passage. These things led to fraud and injury, and it was found necessary to apply a corrective in the shape of a constitutional provision.” (City of St. Louis v. Tiefel, 42 Mo. 590.) This provision has been framed in the constitutions of many of the States of the Union; and Courts,-whenever it has come before them, have liberally construed it as the will of the people in the interests of honest legislation.

In the People v. Denahy, 20 Mich. 350, Mr. Justice Cooley, in considering a statute which provided for the expenditure of non-resident highway taxes, for the improvement of two State roads, and for the construction and improvement of another State road, which was not expressed in the title, uses this language: “ These objects have no necessary connection, and being grouped together in one bill, legislators are not •only precluded from expressing, by their votes, their opinion upon each separately, but they are so united as to invite a combination of interests among the friends of each, in' order to secure the success of all, when, perhaps, neither could be passed separately. The evils of that species of omnibus legislation, which the Constitution designed to prohibit, are all invited by acts thus framed; and though we have no reason to suppose that those evils actually existed in the present case, or that there was any purpose on the part of the Legislature to disregard the constitutional requirement, yet We can *641 not be governed by these considerations if the act is of a class which is actually prohibited.”

In Rader v. Township of Union, 39 N. J. 514, it was held that a statute entitled “ An Act in relation to streets in Union Township,” could not embrace a power to lay out a park. “The making and control of streets,” says Mr. Chief Justice Beasley, “is a thing entirely different from the making of parks; the two have no connection, and neither is an adjunct to the other; and it is impossible, as it seems to me, to hold that a description of one embraces both.”

In Walker v. The State, 49 Ala. 329, a statute entitled, “An act to restrict the sale of personal property in certain cases,” which also provided that the willful destruction of personal property on which there was an unsatisfied lien, should be considered a criminal offense and punishable as a misdemeanor, was held to contain a subject foreign to that expressed in the title. And in State v. Silva, 9 Nev. 227, it was held that where a statute entitled “An act to regulate marks and brands,” and containing a provision that any person who, with intent to defraud, kills any stock running at large, whether branded, marked, or not, shall, upon conviction, be deemed guilty of felony, was unconstitutional and void, because it contained a subject which bore no relation to the subject expressed in the title.

2. Moreover, the Legislature has not, in any of the provisions of the act under consideration, designated any particular river, stream, or locality within the State where drainage is necessary; nor has it located or established the boundaries of any drainage and assessment district within the limits of which taxes are to be levied, assessed, and collected, for the purpose of raising funds to defray the cost and expenses of the system of works designed by the act. What has been done is to appoint a commission constituted of State executive officers, one of whom—the State Engineer—is required to go over the State for the purpose of investigating the subject of drainage, with a view to the control of debris from mining and other operations, the improvement and rectification of river channels, the erection of embankments or dykes necessary for the protection of lands, towns, or cities from inunda *642 tion, and the division of the State into several drainage districts, each of which shall include a territory drained by one natural system of drainage. This investigation was not intended to be advisory to the Legislature or to enable it to perforin its duty with reference to the subject of the investigation; for, although the engineer was required to report the result of his examinations, his report was to be made to the board, of which he was a member, for their consideration, judgment and action, and not to the Legislature. In the consideration of the report the board could accept or reject it altogether, or amend it. If they reject it, that ended legislation upon the subject, and the act became dead. If they adopted it in its original form, or amended it, and adopted it as amended, they were, then, authorized to declare, by a resolution entered upon the record of their proceedings, the territory, as described and bounded in their report, to be a drainage district. The entire subject, including the necessity for drainage of any particular section of the State, and the creation and organization of drainage districts, was, therefore, referred, by the act, to the Board of Commissioners with power to legislate, and for that purpose an almost unlimited discretion was given to them. It was for them, in the exercise of their powers, to decide whether any drainage district, as contemplated by the act, was necessary at all or not, or whether there was a necessity for one or many. They could create one or many wherever, in their judgment, that necessity existed, whether they included a territory drained by one system of drainage or not. They could limit them to a particular section of the State, or they could cover the State with them. The entire act was thus made contingent upon their judgment' and discretion. If they found some locality indicated by the act, the drainage of which was necessary to be improved or promoted, for the purposes provided for by the act, the statute was expedient. If, on the other hand, they found no such locality and no such necessity, the statute was inexpedient. But the provisions of the act were dead and unenforceable until revived by a determination of those questions by the commissioners. Not until they were finally determined, and one or more districts were created and organized, could the provisions of the act for a system of public *643 improvement within the district, and the levy, assessment, and collection of taxes to pay for it, be put in operation by the District Board of Directors. I think that the determination of those things could not be referred to a Board of Commissioners or other body. To decide upon the necessity for drainage for a part or all of the territory of a State is to declare a public purpose. To declare a public purpose, and to create a district over a designated area of the State, in which that purpose shall be accomplished, and to provide ways and means for its accomplishment, are matters which belong exclusively to the Legislature. If a necessity exists for the construction of public improvements within the State for a public purpose, the Legislature must declare it. If a district has to be created over an area of the State the Legislature must create it, and establish its limits. If property within it will be benefited by the improvement, the Legislature must determine it, and prescribe the rules upon which taxation must be apportioned. There are powers conferred upon it alone by the Constitution, and it can not delegate them to any other department of the government, or to any agency of its appointment, because it would be confiding to others that legislative discretion which legislators are bound to exercise themselves, and which they can not delegate to any other man or men to be exercised. (Cooley’s Const. Lim. 121,122.) Most of all, the Legislature can not delegate such powers to executive officers of the State, because the Constitution has divided the powers of government into three departments—the Legislative, Executive, and Judicial; and has declared that no person, charged with the exercise of powers properly belonging to one of these departments, shall exercise any function pertaining to either of the others, except it is expressly directed or permitted by the Constitution. (Const., art. iii, § 1.) Mo such direction or permission is contained in any part of the Constitution. I am, therefore, of opinion that the entire act is unconstitutional, because its provisions are made contingent upon the judgment and discretion of the board of Drainage Commissioners; and because in making it so contingent the Legislature delegated to the board powers which are not in their nature transferable (especially to executive officers of the State), and which can be exercised by the *644 Legislature alone. (Houghton v. Austin, 47 Cal. 653; Ex parte Wall, 48 id. 280; Richardson v. Heydenfelt, 46 id. 68.)

3. Furthermore, I think that the act is unconstitutional, because it authorizes a local board—the District Board of Directors—to levy a tax and two assessments for a public purposes, at the same time, upon the same property, in addition ' to a tax levied by the State for the same purpose, upon all the property of the State, which, of course, includes the property within the district. The first of these levies by the Board of Directors is authorized to be made upon all the property within the district; the second, upon “all hydraulic mines and upon all mines washing earth or ores with water running into the district;” and the third, upon the valuation of swamp and overflowed lands reclaimed by the construction of any of the works contemplated by the act. The first was to be made according to the standard of valuation; the second, upon the basis of “ one half of one per cent, for each miner’s inch of water of each twenty-four hours’ run used during the year;” and the third, upon the basis of the value of the reclamation of the lands reclaimed, not to exceed three dollars per acre.

Of the power of the Legislature to authorize municipal corporations to impose or levy local rates, taxes, or assessments upon all property within the limits of a designated taxing district, there is no question; and that power may be exercised so as to authorize a quasi corporation—such as a Board of Commissioners or other body, whose rights and duties are prescribed by the Legislature, for a local purpose, within the limits of a special taxing district, designated by the Legislature. But none of these taxes or assessments is authorized to be levied for a local purpose. All the moneys to be raised by the modes prescribed by the act are to be used exclusively for paying the costs and expenses of the public works authorized to be constructed within each district, for the purposes embraced in the act. It is, therefore, a general public benefit, and a local board can not be authorized to levy local taxes and assessments for a public purpose. Such a power could not be conferred upon a municipal corporation (Const., art. xi., § 12), neither can it be conferred upon a quasi municipal corporation.

*645 Besides, duplicate or triplicate taxation levied at the same time, and for the same purpose and upon the same property within a territory of the State which has not been established by the Legislature as a special taxing district, is void, whether levied according to the standard of valuation or benefits. Such taxation is destructive of that equality and uniformity which the Constitution requires for the validity of every tax.

Judgment reversed.

Morrison, C. J., concurred in the judgment.