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"(b) To the county, five per cent of such portion to be paid to the county treasurer, and to be thereafter apportioned by the proper officers between the road and bridge funds of the county."

Section 41 of the act provides for the apportionment of the taxes levied by the highway board under sec. 40 of the act as follows:

"The entire proceeds of taxes levied for bridge purposes and the proceeds of all taxes assessed and collected outside of the limits of included municipalities, as defined in section sixty-four hereof, shall be paid to the highway district. In respect to all taxes levied by the highway board for road. purposes under section forty hereof, that portion thereof assessed and collected within the limits of any included municipality shall be paid and applied as follows:

"1. To such municipality, twenty-five per cent thereof. "2. To the highway district, seventy-five per cent thereof." So it will be seen that by the provisions of this law the taxes levied for bridge purposes and the proceeds of all taxes assessed and collected outside of the limits of included municipalities are paid to the highway district; that is, the highway district, exclusive of the territory included within the municipality shall be paid and have the use of the entire proceeds of taxes levied for bridge purposes, and the proceeds of all taxes assessed and collected outside of the limits of cities, towns and villages, and all taxes levied and collected by the highway board within the limits of any city, town or village within a highway district shall be paid and applied as follows: "1. To such municipality, twenty-five per cent thereof. . . . . 2. To the highway district, seventy-five per cent thereof."

It will thus be seen by the provisions of the act of 1911 that three systems are provided for assessing property within cities, towns and villages for highway purposes: first, the city, town or village; second, the county; third, the highway district; and that two different systems are provided by the act for the apportionment of the fund arising by reason of assessments by the county and the highway district. The

Opinion of the Court-Stewart, C. J.

system of apportionment of the fund arising by reason of the assessment of the board of county commissioners under the provisions of this act is substantially the same as that provided by the laws of the state prior to the adoption of the act. The apportionment of the fund arising by reason of the assessment of the highway board relates to a fund arising wholly from the taxation made by the highway board under this statute, and it is especially this assessment which counsel for appellant claims is an additional taxation and amounts to double taxation of the property of cities, towns and villages which may be included within a highway district. Whether this constitutes double taxation or is a taxation which makes a double burden upon the property owners within cities, towns and villages, depends in a large measure upon the question whether such taxation is used for the same purpose in both instances. A highway district as intended by this act is not a political municipality. It is not created for the purpose of government. It is an entirely different kind of municipality from that of a city, town or village. Its powers are specially limited to the construction of highways upon lines of benefits to the inhabitants and the property within the territory embraced within the distriet. It is made a taxing district and consists of such territory as may be determined by the county commissioners in creating the same. It is contemplated by the provisions of the statute that the property and the people of the entire district are interested in the construction and improvement of the public highways of the district, and it is created for a special purpose, to wit, the assessment of property within the district for the sole and only purpose of improving the 'highways within the district.

The subject of taxation is a matter within the province of the legislature of the state, unless there is some specific limitation found in the constitution. (27 Cyc., pp. 607–613; 1 Elliott, Roads and Streets, sec. 475.) The legislature in this instance has seen fit to provide for the creation of highway districts for the purpose only of improving the highways of a section created into a district. It has determined

Opinion of the Court-Stewart, C. J.

this matter and what property is subject to taxation therein, and the method of apportioning the fund raised, and it was acting clearly within its constitutional right, and there is no attempt on the part of the legislature to impose taxes for the purpose of any county, city, town or other municipal corporation, but a clear exercise of legislative authority granting to a community, subject to certain restrictions, the right to organize themselves into a municipal corporation with power of local taxation, and the issuing of bonds for public improvements, and the section of the constitution above referred to in no way prohibits such legislative action. A highway district, as created in this act, is not a municipality such as a county, city, town or village, but is an entirely different kind of municipality created for a specific purpose. (Fenton v. Board of County Commrs., 20 Ida. 392, 119 Pac. 41; Boise Irr. etc. Co. v. Stewart, 10 Ida. 38, 77 Pac. 25, 321; Hettinger v. Good Road Dist. No. 1, 19 Ida. 313, 113 Pac. 721.)

Where, therefore, the legislature of the state, exercising its power over the subject of taxation, passes an act which provides for the creation of a municipality such as a highway district, and authorizes such district to tax the property of said district for the purpose of raising funds for the construction and maintenance of highways within such district, and such district organizes as such, and includes an incorporated city, town or village, which city, town or village has, by reason of its incorporation as such power also to levy a tax within such city, town or village, the taxation made by the highway district under the authority of the legislature is not a double taxation upon the property within the city, town or village. The construction of highways leading to a city, town or village from a country district is not only a benefit to the country outside of such city, town or village, but is a like benefit to such city, town or village, and such taxation being one based upon benefits, is not prohibited by any constitutional provision.

In the case of Hettinger v. Good Road District No. 1, 19 Ida. 313, 113 Pac. 721, this court had under consideration an

Opinion of the Court-Stewart, C. J.

act of the legislature of the state of Idaho, Sess. Laws 1909, p. 172, in relation to the organization of good road districts, and in that case said: "Sec. 882 of the Rev. Codes authorizes the board of commissioners to levy a general tax upon all the property within the county, including the towns and cities, and the county is required to turn over to such towns and cities one-fourth of the fund thus raised to be expended by the municipalities upon its streets and alleys, and under the provisions of sec. 2238 of the Rev. Codes, towns and cities are given authority to raise an additional fund by special taxation for the same purpose, and the same argument made in this case would apply to sec. 882 with reference to turning over a portion of the general tax levied to a municipality, and likewise many other sections of the statute would be affected by the same course of reasoning; but clearly these various provisions are not double taxation. (Boise Irr. etc. v. Stewart, 10 Ida. 38, 77 Pac. 25, 321.)”

Mr. Elliott, in vol. 1, sec. 475, on Roads and Streets, announces the general rule as follows: "The legislature, in the absence of any constitutional provision to the contrary, may provide for taxing districts without regard to the boundaries of counties, townships or municipalities, as well. as by following existing political or municipal lines. Highway improvements may be made by a tax on all the property, real and personal, in the taxing district, or by local assessment against the real estate specially benefited. In other words, it is for the legislature to determine in general, within constitutional limitations, on what persons and property the cost or expense of constructing and maintaining highways shall fall and the mode of taxation or manner of raising the fund." This same doctrine is also announced in Page & Jones on Taxation by Assessment, in vol. 1, secs. 552, 553, and other sections following.

In the case of Byram v. Marion County Commrs., 145 Ind. 240, 44 N. E. 357, 33 L. R. A. 476, the supreme court of Indiana had under consideration a statute which provided for assessing property in a city by the county board of turnpike directors for repairing, maintaining and paying for

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material for free gravel roads or turnpikes within the county, although situated wholly without the limits of the corporation, where such statute makes the taxing district consist of the whole county, and the court says: "It is for the legislature, and not for the courts, to determine whether or not city property included in a taxing district under a gravelroad statute is benefited by the repair of the gravel roads, although they are outside of the city."

In the case of State v. Arnold, 136 Mo. 446, 38 S. W. 79, the supreme court of Missouri had under consideration a similar question and said: "But, assuming that the section has general application to all cities and towns in the state, it only purports to exempt them from paying county road taxes when their charter or the general law by which they are governed exempt them"; and held that property in a town incorporated by special charter and not located in a county under township organization is not exempt from liability for improvement of county roads outside the town where its charter does not provide for such exemption.

Judge Cooley, in his work on Taxation, p. 113, says: "Taxing districts may be as numerous as the purposes for which taxes are levied. It is not essential that the political districts of the state shall be the same as the taxing districts, but special districts may be established for special purposes wholly ignoring the political divisions. . . . . The political subdivisions of the state are necessarily regarded in taxation only when the tax itself is for a purpose specially pertaining to one of them in its political capacity so that, as already stated, the nature of the tax will determine the district."

In the case of Board of Commissioners v. Harrell, 147 Ind. 500, 46 N. W. 121, the supreme court of Indiana had under consideration a similar question and said: "The power of the legislature in matters of taxation is unlimited, except as restricted by the constitution. The legislature, in the exercise of that power, in making local improvements may create a special taxing district without regard to the boundaries of counties, townships, or municipalities." In that case it appears that the taxing districts were the same as the