State v. Commissioners
State v. Commissioners
Opinion of the Court
This statute, we think, is invalid on several grounds. 1. It is an assumption of powers over the affairs of a county not pos
One-half of the cost and expenses are to be levied on the general taxpayers of the county, and the other half is to be assessed on the lands and lots lying on both sides of the road and the ends thereof, within the distance of one mile, to be apportioned according to benefits by a commission to be appointed for that purpose. To meet the expenses in the first instance, the bonds of the county are to be issued and sold in an amount not to exceed the sum of $400,000. All this is to be done if the commissioners act at all, without the petition of a single person, interested or otherwise, although the costs and expenses may amount to the sum of $400,000, to be raised as above stated. Is the enactment of this law the fair exercise of legislative power? We think not. It is simply a usurpation of the powers heretofore always allowed to the proper administrative boards selected by the people of the localities concerned in the exercise of the right of local self-government; and always called into activity on the petition of, at least, a majority of those interested, not only in the benefits, but also in the costs and expenses of the improvement. This is shown in the road improvement laws of the state, under the one and two-mile systems, the ditch and levy laws, and the laws regulating the improvement of streets and alleys in municipal corporations.
The system of local self-government existed under general laws at the adoption of the present constitution; and there is nothing in it, nor in any of its provisions, from which a design can be in
If it is competent to the general assembly to authorize the commissioners of Hamilton county by a special act to make such an improvement in that county, without the request of any one interested, then the same may be done in any county of the state, irrespective of the resources of the county, or of the ability of those who will be compelled to pay the large assessments made on their lands to meet the costs and expenses of the improvement. This is a wide departure from the principles of local self-government; and so wide, it is not possible to sustain it by any latitude of construction. It is true that, under this statute, the improvement must be authorized, or more properly approved, by the commissioners, which may be said to be some protection against the improvidence of the legislature. But, as already shown, when they act, they must proceed in the
The fact that parties interested may be heard before a committee of the legislature, is not the equivalent of the right to be heard before the proper local board, where all may be heard and their objections considered, with little or no inconvenience or expense. Nor can the fact that, as stated by counsel the parties were heard in this case, make any difference. By the act no application or hearing of any kind is required; the commissioners may act sua aponte.
2. It is a special act conferring corporate power upon certain municipal corporations. The petition avers that the Paddock road and its proposed extensions will pass into or through the villages of Bond Hill, Carthage, Wyoming, Glendale and Avondale, in Hamilton county; and it is provided in section 7 of the act, that theocommissioners and the council ‘ ‘of any village owning any part of the lands necessary to be acquired for the purpose of carrying’ out the provisions of this act are hereby authorized to dedicate the same free of costs to the county.” This is a power not possessed by other villages of the state and is conferred on them by a special act. Under it they may so dedicate their streets to the county, and thereby relieve themselves from the duty of keeping them open, in repair and free from nuisances, as other villages are required to do. Here are two express powers conferred on these villages: One is to dedicate their property to the county, and the other is to relieve themselves from duties enjoined on other villages
There is still another ground on which this statute is, in my opinion, clearly invalid. The location and construction of public roads is a subject of a general nature, and should, therefore, be regulated by general laws, uniform in operation throughout the state. Const., article 2, section 26. And have always until recently been so treated. Cases may arise in which the peculiar circumstances may require special legislation of a local character. It may happen that a bridge is carried away by a flood, or that a court-house is destroyed by Are, and that under, existing laws, there is no power to meet the emergency thus created. Such circumstances create of themselves a special subject of legislation, growing out of the emergency, and are excepted by the law of reason out of the gen
But as this question is presented in a number of cases now pending in this court, it is not now passed on by the court; nor are my associates in any way bound by what is here said. The points decided are expressed in the syllabus.
Judgment reversed, and judgment rendered for the plaintiffs.
Reference
- Full Case Name
- State ex rel. v. Commissioners
- Status
- Published