Merriam v. Moody's Executors , 25 Iowa 163 ( 1868 )

Dillon, Ch. J.

l. Corporation municipal: powers which it may cxsr* cisc. This ease is not governed by that of McNamara v. Estes (22 Iowa, 246), because distinguishable from it in three different particulars. A JLJie sale in that case was after the act of ^ March 22, 1858, “ Concerning taxes levied by municipal authorities ” (Eev. § 1144). The sale in this case was before the passage of that act.-

In that case the plaintiff was seeking to collect by suit. In this case the plaintiff seeks to recover upon his tax deed as the source and evidence of an absolute and irredeemable title. In addition to this, the point as to the power of the city to sell and convey real estate for the non-payment of special taxes levied under sections 4 and 5 of the amended charter of 1853, was neither made by counsel nor decided by the court. In that case the total want of power to sell was not denied; the questions made related to irregularities concerning the exercise of the power. In determining the question now made, it must be taken for settled law, that a municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words; second, those necessarily implied or necessarily incident to the powers expressly granted ; third, those absolutely essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable; fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation — against the existence of the power. Vincent v. Nantucket, 12 Cush. 103, 105; Clark, Dodge & Co. v. Davenport, 14 Iowa, 494; Clark v. Des Moines, 19 id. 199; Minturn v. Larue, 23 How. U. S. 435; Bank v. Chillicothe, 7 Ohio St. 2, pp. 31, 36, per Hitchcock, J.; Collins v. Hatch, 18 id. 523; Sharp v. Spear, 4 Hill, N. Y. 76, approved in 2 Denio, 330, and in 10 N. Y. 329; Ham v. Miller, 20 Iowa, 450, 453; Mays v. Cincinnati, 1 Ohio St. 268.

2_special collection of by sale. In the light of these fundamental principles, the question for determination in the present case is, whether, as a mode of “ enforcing and collecting the special taxes” or assessments authorized by sections 4 anq 5 0f the amended charter of 1853, the city may lawfully pass an ordinance providing, that, in case of the non-payment of such taxes or assessments, the lots in front of which the improvement is made may be sold and conveyed by the city. That the city claimed to possess such a power is manifest from ordinance No. 41, set out in the statement. This ordinance, in express terms, authorized such sale and conveyance. If the city possesses the power it claimed and exercised, then the sale is valid, unless the irregularities and defects urged against it are sufficient to invalidate it.

The extent of a grant of power is to be ascertained from all of the sections relating to the subject; that is, they are to be read and construed in the light of each other, the better to determine the ultimate object of inquiry, viz., what did the legislature intend 1 The Mayor v. Howard, 6 H. & J. 392. If it clearly intended to confer the power, the courts should hold it to exist, otherwise not.

The grant to the city in the above mentioned sections 4 and 5 is of “ power to levy and collect a special tax ” on lots for curbing, macadamizing, etc., in front thereof.

If this stood alone, —if, in other words, the only grant was of power “ to levy and collect,” — then, as a proposition of law, declared by many decisions, it would be plain that the city could not provide for such collection by a sale and conveyance of the property. This precise point was the one decided by this court in the case of Ham v. Miller (20 Iowa, 450). And see also McInerney v. Reed, 23. Iowa, 410; Blackwell on Tax Titles (ed. 1864), ch. 31, p. 448, and authorities there cited.

s. —mode of such cases™ Where such is the grant, and the charter or constituent act is silent as to the mode of collection, the grant of power is not nugatory, but the city may provide for the collection of the tax by due course of law, i. e. by judicial proceedings. McInerney v. Reed, supra; Bergen v. Clarkson, 1 Halst. 352; Mayor v. Howard, 6 H. & J. 383; Dugan v. Mayor, 1 Gill & J. 499; Bergen v. Clarkson, 1 Halst. 352.

The authorities above referred to clearly establish that the power “ to levy and collect,” given by said sections 4 and 5 of the amended act of 1853, would not authorize the council to sell and convey the property of those who neglected to pay.

In Ham v. Miller (supra), Wright, J., delivering the opinion of the court, distinctly states that “the power to assess ” or “to collect taxes” does not include that of selling and conveying in case of non-payment.” And to this effect are all of the adjudged cases, without exception.

Indeed, it has not been claimed in argument that the power to sell could be derived from sections 4 and 5, under which the special tax in question was levied.

If the power exists, it must be found elsewhere. We, therefore, proceed to notice the other sections of the charter relied on by the plaintiff as conferring the power.

With respect to the annual tax authorized by section 27 of the original charter (act of December 13, 1848), the general mode of collection is pointed out and a sale and conveyance expressly authorized (§§ 28, 29, 30).

And respecting the general tax, though called “a special tax” — general, because to be levied “upon the property, real and personal, situated in said city”-r-authorized by section 1 of the act of 1853, it is provided that “the said city shall have the same rights, powers and remedies to enforce the collection of the same by the sale of property, or otherwise, as is or may be provided for in other cases relative to city revenue. Act of 1853, § 2-

Then come sections 4, 5, 6 and 7, providing for the levy of certain special taxes and their assessment upon the property benefited. It was under sections 4 and 5 that the special tax in question was levied. None of these sections specify the mode of collection.

This is done in section 8, which reads as follows:

“Seo. 8. The assessment of taxes made by virtue of the authority contained in the four preceding sections of this act shall be enforced and collected as may be provided by ordinances of the city council of said city.”

Does this give to the council power to provide by ordinance for the sale of the property of delinquents ?

It is our opinion that it does not. This opinion is based upon the language of section 8, and upon the argument derived from the absence of the power to sell which is expressly given with respect to the general tax (section 27 of original charter), and the special tax specified in sections 1 and 2 of the amendment of 1853, and which is not expressly given with respect to the special taxes mentioned in sections 4, 5, 6 and 7 of the amended charter.

The object of section 8 was to remove by express words all doubts as to the power of the city to enforce and collect the tax by ordinance. But the power to “ collect ” does not, as we have seen, authorize collection by sale. It is said by Mr. Justice Wright, in Ham v. Miller, that the power to sell must be expressly given.

So Mr. Blackwell says that a corporation whose powers, in this respect, are more strictly construed than those of the State, “ cannot sell the goods or lands of the delinquent, unless there is an express grant in its charter.” Tax Title (4th ed.), 448. And so the law is stated in Bergen v. Clarkson, 1 Halst. (N. J.) 352, 361.

If this is the law, then, inasmuch as there is no express power to sell conferred as respects the taxes in question, this is an end of the plaintiff’s ease.

But it has been declared that such a power may exist by necessary implication. Sharp v. Spier, 4 Hill, 76, per Bronson, J.

It may be conceded that if the power to sell were absolutely necessary to carry into effect the power expressly delegated, that the power to sell would be held impliedly to exist. But how can that be claimed in this case? The express power delegated is to collect the taxes, or at most to collect in such way as the corporation may provide by ordinance. This power can be exercised and enjoyed without exercising the power of sale. Hence, on acknowledged principles, the power to sell cannot be held to be given by necessary implication. There is no necessity for any such implication in order to enjoy the power.

Again, every corporation has the implied common law power to pass all such reasonable ordinances as may be necessary to carry into effect powers expressly conferred.

And in this view, it is very doubtful whether section 8 gives the city any more or greater power to pass ordinances to enforce the collection of the tax than it would have without this section.

Again, in respect to all other taxes except those mentioned in sections 4, 5, 6 and 7, the power to sell is expressly conferred upon the city. It is not conferred with respect to these. The fair and natural inference is, that the legislature purposely withheld it. Expressio imius. etc., is applicable.

Again, by the common law, the po,wer of corporations to pass by-laws is kept within specific bounds; and it is settled, that unless there is express power, or, what is equivalent, a power by necessary implication, that they cannot ordain forfeitures of property or enforce by-laws by a pecuniary penalty, or inflict punishments, or ordain a sale of property for neglect to pay taxes and assessments. Bergen v. Clarkson, 1 Halst. 352, 361, and cases cited. In construing section 8, these well settled principles are to be borne in mind.

Again, there is, in the difference between general taxes and special assessments, a reason why the legislature should, with respect to the one have conferred the power to sell, and not with respect to the other.

It would be almost impracticable for the city to collect by suit the amounts levied for general taxes and for the special tax authorized by section 1 of the act of 1853. The amounts are small, and the debtors as numerous as the tax payers of the corporation. With reference to the general tax, it has to be collected annually. To prevent this inconvenience, the power to sell is expressly conferred.

On the other hand, the number of persons assessed for local improvements is much more limited, and the amounts assessed frequently large. These assessments are made in occasional instances only. It is not impracticable to collect these by suit. Indeed, collection of such assessments by suit and not by sale, is the mode provided now by the general incorporation act for cities and towns. Eev. ch. 51, § 1068.

In the case, at bar, the assessment upon the lot in question exceeded $100. For these reasons, it is our opinion that section 8 of the amended charter does not confer upon the city the power to enforce the collection of the tax by a sale of the property.

The only other section relied on by the plaintiff is section 14, which is copied in the statement of the case. This section, when carefully examined, will be seen to contain no grant of power whatever. It is provided for a different purpose. Its sole object is to declare the effect, as instruments of evidence, of “ deeds made to purchasers of lots sold for taxes or assessments.”

. Th&.power to sell is not necessarily or even properly to be implied from this section. It refers to deeds which are authorized to be made by the charter and amended charter. So to phrase it, this section has something to “feed'upon” in section 29 of the original charter, and sections 1 and 2 of the amended charter of 1853.

Its language is not made inoperative by holding that it has no reference to sections 4, 5, 6, 7, or 8, of the amended charter.

Again, suppose it does have reference to deeds for assessments for local improvements, yet if the legislature, by inadvertent omission, failed to give the power to sell, such power is not necessarily to be implied from the provision regulating the effect of the deed, and if not necessarily to be implied, it does not exist.

For it is easy to see that the legislature might regulato the effect of deeds on the mistaken supposition that they had authorized such deeds to be made, when in fact they had never given any such authority. In such a case the power to make the sale and deed could not be necessarily implied from the provision regulating the effect of the deed as evidence. It will not do to derive the power to sell from doubtful inferences.

. The alleged grant of the power to sell for failure to pay assessments for local improvements is illusory. At first glance it seems that it is given by sections 4 and 5 of the amended charter, but when we get there it is impossible to find it. In advance lies section 8 which apparently gives it, but reaching that point it still eludes us, and in the distance we seem to see it in section 11, arriving at which it again escapes the grasp, and can nowhere be found or localized within the. demesne of the chartered rights of the corporati^Sr^Tt^''^' is an ignis fatuus, without any actual existence^

In conclusion, we remark that it has thus beáás^QWBí..,-that there is no express power of sale given toMie!ejty,y'fh It has also been shown that it possesses no sncI^powei,J " by necessary implication; that no such power is\e^|iyigiixVi in order to exercise or enjoy those expressly grantSás"

The rule of law denying to these corporations constructive power to sell the property of the citizen, except where the power is unmistakably given, and the further rule of law, that, if there fairly exists a doubt concerning the power, the doubt is to be resolved against the existence of the power, in favor of the public and against the corporation, are founded in the highest wisdom and sanctioned by universal experience.

It is our opinion that the tax deed, on which the plaintiff relied, did not convey to him the title to the lot, and, hence, the court did not err in giving judgment for the defendant.

Affirmed.