Hawley Street Commissioner v. Hoops ( 1861 )

Lowe, C. J.

A suit to recover of defendant a road tax, assessed for the year 1859, within the limits of the city of Muscatine, by the trustees of Bloomington Township, under an act approved March 2Sd, 1858, agreeably to the provisions of the 12th section thereof, which authorized township trustees to levy a road tax not exceeding three mills on the dollar upon the township assessment, for the working upon, and repair of roads, with a proviso of the following, to-wit:

“That when incorporated cities are by act of incorpora- “ tion heretofore passed and made road districts, this act “ shall not interfere with such districts, but the same shall “ be under the control of such city.”

The city of Muscatine had by previous act been constituted a road district. It is situated within Bloomington township; the defendant resides within the limits of said city. The point to be settled is, whether he is liable to pay a road tax levied by the township trustees, under the act just referred to.

This depends upon the construction to be given to the above proviso. We have but little difficulty in arriving at its true meaning and object. When the law says that incorporated cities heretofore made road districts shall not be interfered with under said act, we suppose the legislature meant precisely what these words naturally signify, and that is, cities under such circumstances, shall be exempt from the operation of said act; and that their streets which are usually improved differently from ordinary roads, shall be under their own control. This can not, however, in any just sense, be said to be the case, when the power to determine the amount of tax necessary to open and improve streets, is lodged with a district corporation that has no interest in, or connection with, the city. The municipal authorities of the city could not adopt any settled system fer the improvement of their streets unless the means for doing so were under their control. To leave the power of originating or providing these means in the hands of the township trustees would be manifestly unwise and inexpedient. Their levy of a tax for such purpose might be wholly inadequate to, or in excess of, the amo unt required; and whilst they continued to exercise this power, the improvements of the streets in the city would virtually, to a greater or less extent, be under their control, and not that of the city. Hence we suppose there was a sufficient reason for for repealing so much of the amendment to the charter of Muscatine City, passed in July, 1856, as gave to the county authorities the same power which has been exercised by, but not conferred upon the township trustees in this case.

The improvement of streets, allies and side walks in all incorporated cities is one of its most important municipal objects, and the power to raise for this purpose the requisite means, by levying and collecting a municipal tax, will be found given in all their charters, as it is in the Muscatine City Charter.

What useful purpose is to be accomplished therefore, by dividing this power with the township trustees is not apparent. It certainly complicates matters, render the system of raising funds for municipal objects more burdensome and expensive, and at the same annoying to the tax-payer. For instance, we suppose that a road tax collected under a levy made by them, could hardly be expended upon side-walk and allies, because such objects do not seem to be contemplated by the road law, and yet this class of improvements in a city is inseparably connected with that of its streets, and it is competent for the city of Muscatine, under its charter, to provide ample means by taxation for all these as well as other municipal objects.

We can see therefore, no reason why the township trustees should share a limited amount of this power with the city. The legislature evidently saw no necessity for it, and hence in the new road law of 1858, they expressly prohibited the township trustees, in the matter of a road tax, from interfering with incorporated cities heretofore constituted by law road districts.

Muscatine was so constituted; and it follows that the act of the trustees in levying the tax was nugatory and void, conferring no power upon the marshal of the city to collect the same, and therefore no suit can be sustained against the defendant for this tax.

The judgment below will be

Reversed.