City of Genesee v. Latah County

MORGAN, J.

(After Stating the Facts.) — Section 886 of the Revised Statutes provides that county commissioners shall levy road tax on all property in the county for road purposes. This includes property of towns and villages. The tax so levied and *144 collected was to be turned over to county treasurer for tlie use of the road districts from which it was collected. The latter clause was changed by amendment in First Session Laws of 1890-91, page 192, by virtue of which this fund now goes into the county treasury for use of the road fund. This does away with the provision that money must be applied in district from which it is collected. That subdivision 6 of section 870, as amended in First Session Laws, page 190, requires that twenty-five per cent of the funds so collected in any road district must be expended in the district where collected. Section 6 of article 7 of’ the constitution, referred to by counsel, does not affect the rights of the respective parties to this suit in any way. This section simply prohibits the legislature from making a direct levy of taxes, but states that it may authorize the corporate authorities of municipal corporations to levy such taxes. By subdivision 7 of section 870 of the Bevised Statutes of Idaho, and as amended in First Session Laws, pages 190, 191, approved March 13, 1891, the county commissioners are given the exclusive right to levy a property road tax. This authority was so conferred in the face of the act of same session (page 159) approved March 7, 1891, which amended section 2238 of the Be-vised Statutes, and which confirmed, in towns and villages, the right to levy and collect taxes for general revenue purposes. These acts are not repugnant or conflicting, but, construed together, mean that county commissioners shall levy all property road tax, and that town and village trustees may levy and collect, as is said, taxes for general revenue purposes; and this must be held not to include a property road tax, as authorized to be levied by county commissioners. It follows, then, that the county commissioners must levy and collect a property road tax; that twenty-five per cent at least of this road tax must be expended in the district from which it is collected. Where a town or village is a separate road district, it must be so expended in said town or village.

Section 2230, subdivision 16 of the Bevised Statutes, gives towns and villages the right to keep in repair all highways, streets, and alleys; and, as two different boards cannot exercise the same power in the same jurisdiction at the same time, tliis right must be held to be exclusive. If exclusive, then the *145 boards of commissioners cannot authorize its road overseer, or a,ny road overseer, to go within the limits of any organized town or village to repair, or in any way interfere with, its streets or alleys. It necessarily follows that the county treasurer must hold the said twenty-five per cent of the property road tax so levied and collected as money had and received for the use of said town or village, to be paid to said town or village on proper demand. The presentation of the account for said twenty-fivu per cent to the county commissioners is a sufficient demand.

Inasmuch as there is no power in the board of commissioners to direct the expenditure of said money in said town of Genesee, and as all work on streets and alleys of the town of Genesee must be directed and controlled by the trustees of said town, the said county commissioners should turn over said money to said town, and should issue a warrant therefor to the treasurer of the town of Genesee.

The judgment of the court below is reversed, and said court «s directed to issue an order to the board of county commissioners of Latah county, directing them to issue a warrant to the treasurer of town of Genesee for twenty-five per cent of property road tax collected by said county upon property situated within the corporate limits of the town of Genesee, in said county.

Huston, C. J., and Sullivan, J., concur.