Iowa Railroad Land v. County of Sac , 39 Iowa 124 ( 1874 )

Miller, Ch. J.

The plaintiff in these suits alleges that it has paid all the taxes legally chargeable and levied upon its property for the years 1870 and 1871, and complains that certain illegal taxes have been levied thereon, and that the treasurer of the county is about to sell the plaintiff’s lands for such illegal taxes and costs charged thereon, and asks that such sale may be enjoined.

I. The first tax complained of as illegal is the road tax for 1870.

The defendant gave in evidence the following extract from the records of the township trustees of oue of the townships of the county, viz:

“ State of Iowa, 1 Sac County, April 11, 1870. j

Trustees met according to law for the purpose of levying road taxes for the year 1870. Present, E. A. Cobb, J. Jones, W. "V. Lagorgue, Trustees. On motion, resolved to levy three mills on a dollar.

O. J. Dart, Town Olería.”

It was stipulated on the trial, that each of the other townships of the county have similar records of the levying of road taxes by the respective boards of trustees of each of said townships, and the introduction of such records is waived, and the fact admitted, that such records, if produced, would be, in substance, the same as the above.

It is also shown by the evidence that the township clerks of the different townships sent up certified lists to the treasurer, showing that the road taxes levied upon the lands of plaintiff for the year 3870, had not been paid, and that these lists have been lost. Parol evidence was admitted, after showing the loss of the certified lists, by which it was made to appear that the lists sent up did not show the amount of road taxes levied against particular tracts of land, but stated that the road taxes had not been paid on the lands mentioned in the lists, without stating any amounts of taxes; that the lists, in some instances, described whole townships in one description, and in other instances several sections were stated to be delinquent.

It is further shown that in making the tax book .for 1870, the road tax was carried out thereon as a part of the consolidated tax at the time the book was made out.

1. equity : in-eguiarUy turns. These road taxes were legally and properly levied. There is no claim or pretense that they have ever been paid by the plaintiff. The grounds of complaint are mere irregularities in the manner of certifying the delinquent road taxes to the proper county officer, and irregularities in the mode of placing them upon the tax books. This question, under a similar state of facts, came before us and was considered in The Cedar Rapids & Mo. R. R. Co. et al. v. Carroll County, (post), and it was there held that a court of equity will not relieve the plaintiff from the payment of proper and just road taxes against its property, on account of irregularities in the manner of returning the same by the township clerk to the clerk of the Board of Supervisors. The record in this case shows a legal levy of the road taxes. The resolution adopted by the trustees constituted the fact of levying the tax. .The only matters of complaint relate to the manner of transferring and placing this tax on the county treasurer’s books. That there were irregularities in doing this is clear, but under the rule above stated, these irregularities will not relieve the plaintiff from the payment of the taxes legally levied and justly due upon its property.

2. taxes : aavertisement oíiand. _ IL The record shows that the treasurer, in advertising the lands of plaintiff for sale for taxes delinquent thereon, has done so by descriptions containing the smallest '. , , . ^ legal subdivision of land m each description. By this method, of advertising, the cost thereof is shown to be very much greater than it would have been if the largest quantity of land practicable had been included in a single description. Of this plaintiff complains. In the case above cited it was held that it is the duty of the treasurer to so advertise lands for sale for delinquent taxes, as to incur as little costs as are reasonably practicable, consistently with a due and legal advertisement under the law; and that the spirit of the statute requires that when taxes are due and delinquent upon a whole or any smaller part of a section of land in one contiguous body, belonging to the same owner, the treasurer is not authorized to advertise the lands in the smallest subdivisions, but must advertise the whole tract in a single description.

III. It appears by the record that, among the taxes for which the treasurer has advertised plaintiff’s lands for sale, is a tax of ten mills on the dollar upon the assessment of 1871, for the purpose of paying off the ordinary county indebtedness. This tax appellant claims is illegal. The question arises only in the second case which was decided on a demurrer to the petition.

The Minute Book of the Board of Supervisors, under date of September 4th, 1871, contains the following:

“Whereas, The warrants of the county are at a depreciated value: therefore,

“ Resolved, By the Board of Supervisors of Sac County, in the State of Iowa, that the question whether a tax of ten (10) mills above that provided by law, shall be levied upon the taxable property of the county, to pay off the ordinary county indebtedness, shall be submitted to the voters of the several townships of the county at the next general election, to be held on the 10th day of October, 1871.

“The manner of voting shall be, each voting for or against the same shall deposit a ‘ballot’ on which shall be written or printed, ‘ Eor the special tax to pay off the county indebtedness,’ or ‘Against the special tax to pay off the county indebtedness.’ And if a majority of the legal voters of said county, voting for or against said proposition, vote for said proposition, then said tax shall be levied as other county taxes, and collected in like manner, but not otherwise, and it is ordered that the clerk of this Board make and publish a proclamation of the time of said election, and of the proposition therein contained, to be submitted, etc., as usual, and said vote shall be canvassed and returned at the same time that other votes at said election are canvassed. Approved.

Howard Pierce, Chairman.”

It is further shown by an exhibit to plaintiff’s petition that on the 17th day of October, 1871, being after the election was over, the board convened and took action as follows: “On motion, whereas, the Board of Supervisors of Sac County did, at the September meeting of this board, submit a proposition to the legal voters of Sac County, submitting the question ‘ shall a tax of ten mills on the taxable property of Sac County, Iowa, be levied for the year 1871,’ to pay ordinary county indebtedness; and whereas, it appears from the canvass of said votes that said proposition was carried at 'the October election, 1871; therefore,

“Resolved, That the County Auditor is hereby authorized and empowered to place the said ten mill tax on the tax books of 1871, and place his warrant on the same, and that the same be collected by the county treasurer as other taxes are.”

It is insisted by appellant’s counsel that these proceedings conferred no power on the Board of Supervisors to levy this special tax upon the assessment for 1871. '

3.--: higher rate than proviciecihylaw: hoard oí supervisors. Section 250, of the Revision of 1860, provides that “ when the warrants of a county are at a depreciated value,” the Board of Supervisors may submit to the people of ° x x a county ata general election or a special one 4/ 0 1 called for that purpose, u the question whether a tax of a higher rate than that provided by law shall be levied. ”

• Section 251 provides: “ The mode of submitting such questions to the people shall be the following: the whole question, including the sum desired to be raised, or the amount of tax desired to be levied, or the rate per annum, and the whole regulation, including the time of its tahing effect or having operation, if it be of a nature to be set forth * * * is to be published at least four weeks in some newspaper printed in the county. If there be no such newspaper, the publication is to be made by being posted up in at least one of the most public places in each township, &c.”

Sections 255 and 312, further provide that the Board of Supervisors, “ on being satisfied that the above requirements have been substantially complied with, and that a majority of tbe votes cast are in favor of the proposition submitted, shall-cause the proposition and the result of the vote to be entered at large in the minute book and a notice of its adoption to be published for the same time and in the same manner as above provided for publishing the preliminary notice; and from the time of entering the result of the vote in relation to borrowing or expending money, and from the completion of the notice of its adoption in the case of a local or police regulation,, the vote and entry thereof on the county records shall have the force and effect of an act of the General Assembly.”

The effect of these several provisions of the statute, when complied with, is to clothe the Board of Supervisors with powers which it does not otherwise possess by law. The board may be empowered to levy a tax “ of a higher rate than that provided by law,” “when the warrants of the county are at a depreciated value.” In order, therefore, that the board may acquire this power, a substantial compliance with the requirements of the statute must be had. See Schroder v. Crary, 11 Iowa, 555.

It is urged that the proposition, as adopted or determined upon by the Board of Supervisors at their September meeting, did not fix or specify for what year the special tax was to be levied if ratified by the votes of the electors of the county, and that therefore the proceedings conferred no power on the board to levy the tax, and especially that no power was conferred to levy the tax for the year 1871, the regular time for levying taxes for that year having past prior to the election. It will be observed, however, that in the record made by the board on the 17th day of October, 1871, it is recited that the proposition submitted to the voters of the county was, “ shall a tax of ten mills on the taxable property of Sac county, Iowa, be levied for the year 1871.” There is nothing in the record except this recital, to show what the proposition actually submitted was.

The resolution passed by the board in September previous to the election does not name the year in which it was proposed to levy the tax, yet the published proposition may have named it as recited in the record of the board at their October meeting after the election. But it is said by counsel for appellant that there is no proof that any proposition whatever was published. The question as to the legality of this special tax arises on demurrer to the petition in the second case. The averments in respect to the publication of the proposition are as follows: “Your petitioner is informed and believes, and upon such information and belief charges the fact to be that there is nothing on file in any office in said county by which it appears that the question submitted and voted upon was ever published, either by publication in a newspaper for four weeks before the said election, or for thirty days by posting notices in five of the most public places in the county, and a copy of said question posted at each place of voting during the day of election, and whether such notices were in fact given, your petitioner is not advised, and cannot state; but alleges that unless they were published and'posted as required by section 251 of the Revision of 1860, the said election is void for want of such notices, and asks that the defendant be required to set forth, etc.”

4. i’LEADiire: conclusion of* law: taxes. The ^act that the proposition was not published, or due notice thereof given by posting notices as the law requires, is not averred. The averments are merely to the . non-existence oi the evidence of such ¿racó, and of the legal conclusion that if there had, in fact, been no such publication and notice, the election was void. The allegation that the proofs of publication are not on file in any office in the county, tenders an irrelevant issue which, if proved, would not establish the fact that ■ no publication was made, or notice given, for these proofs may have been made and duly filed, and may have been lost or destroyed; hence the /act is not confessed by the demurrer: The fact alone should have been pleaded, and not the-evidence or conclusions of law. Revision, §§ 2941, 2945, 2947.

5. —:--: Sractice * emun-er. The pleading fails to allege facts which show that the board had no authority to levy this special tax, and in */ v ¿ / respect to this tax the demurrer was properly sustained, although a motion to strike out these allegations of evidence and conclusions of law would have been the more appropriate remedy.

IY. It is alleged and shown by the record 'that in addition to a county tax of four mills on the dollar levied for 1870 and also for 1871, and other lawful taxes, the Board of Supervisors also levied, for the year 1870, a special judgment tax at the rate of ten mills on the dollar, to be applied in payment of four several judgments against the county, and also a like tax of ten mills on the dollar for 1871, to be applied on the same judgments. It is averred that these judgments were obtained on the ordinary warrants of the county issued for ordinary county expenses, such as the payment of the salaries of county officers, jurors’ fees, the support of the poor and the like, and it is claimed by appellant that four mills on the dollar is the maximum rate of taxation, which the Board of Supervisors ivas authorized to levy for the ordinary expenses of the county, and for the payment of said judgments, and that, having levied in each year such maximum tax, the board had no power or authority to levy the additional tax of ten mills for the payment of the judgments.

The general question here involved has been several times passed upon by this court. Clark, Dodge & Co. v. The City of Davenport, 14 Iowa, 494, was an action of mandamus to compel the city to levy a specific tax, sufficient to pay off a judgment rendered against it in favor of the plaintiffs. The city charter provided that “ the city council shall have power and authority to levy and collect taxes upon all taxable property, real, personal and mixed within said city, not exceeding one-half of one per centum per annum upon the assessed value thereof.” By an amendment to the charter it was provided, “ that whenever there is a deficiency in the ordinary revenue of the city, after payment of the ordinary city expenses, to pay the semi-annual interest on the debt already created, the city council shall levy a specific tax upon the assessment of the current year to pay said interest.” It was set up in the answer that the city council had exhausted its power to levy taxes, under the power granted to the city in these provisions of its charter. It was claimed by plaintiff, however, that under Sec. 3275 of the Eevision of 1860, the power was conferred and the duty imposed upon the city council to levy a special tax sufficient to'pay off plaintiff’s judgment. It was held that the power of the city to levy taxes was restricted, or limited to the rate and amount specified in ■these provisions of its charter, and that section 3275 mf the Eevision, did not confer upon the corporation the power to levy taxes, where such power is not otherwise conferred bylaw.

It is held, also, that a municipal-corporation can exercise the power of taxation, only when expressly conferred by the legislature.

Section 3274 of the Eevision exempts from execution the public buildings and other 'public property of civil corporations, and also exempts the property of private citizens from being levied upon to pay a debt of a civil corporation. Section 3275 is as follows: “In case no property is found on which to levy, which is not exempt by the last section, or if the judgment creditor elect not to issue execution against such corporation, he is entitled to the amount of his judgment and costs, in the ordinary evidences of indebtedness issued by that corporation. And if the debtor corporation issues no scrip or evidences of debt, a tax must be levied as early as practicable, sufficient to pay off the judgment with interest and costs.”

It was held, in the case referred to, that this last section conferred no independent power upon the city to levy a specific tax to pay off a judgment against it.

In Coy v. The City Council of Lyons, 17 Iowa, 1, also a proceeding by mandamus to compel the levy of a special tax to pay a judgment against the city, the same doctrine is recognized.

Cole, J.,

in the opinion, says: “The plaintiff holds his judgment, and has demanded payment and the levy of a tax to satisfy it, and brings his action for mandamus to compel such levy. The defendant shows, in defense, that the city council has no authority to levy exceeding a certain rate per cent, which may not, in one year, satisfy the judgment. The object of the suit is to compel payment, and the defense only shows an inability under the law to levy sufficient to satisfy it in one year, but a clear ability to do it in subsequent; years.”

Oswald v. Thedinga, 17 Iowa, 13, was an action against tbe, Mayor and City Council of Dubuque to make them personally liable for a refusal to levy a tax to pay a judgment which the, plaintiff recovered against the city, and it is held that the plaintiff having obtained his judgment, it became the duty of the city council under the law, as early as practicable, to levy and collect a tax for its payment, but that it would be a legal excuse for refusing to levy the tax, if the taxing power had been • fully exhausted before the demand to do so was made. ,

Porter v. Thompson, 22 Iowa, 391, was a case similar to the one last named, and it was held that the officers were liable, after a demand to levy the taxes, if within their power under the law, and a refusal to comply with such demand. And it was further said in that case that, ‘£ if the taxing power was. at the time, or for that year exhausted, there would be no liability for the failure. For the statute must be construed in connection with the taxing power of the corporation. It was not intended that a special levy should be made, which, with prior or existing levies, would exceed the maximum rate or per centum fixed in the charter.” And it is also said in that case, that should the necessary current expenses of the corporation ££ absorb the whole taxes which the officers are allowed by law to levy, they would not be bound to comply with the demand. That is to say, if the actual necessary expenses of running the city government required a levy of one per cent (the maximum rate allowed), there would be nd liability for refusing to levy more.”

In the case of Coffin v. The City Council of Davenport, 26 Iowa, 515, the same general doctrine was held and practF cally applied in the modification of the judgment of the court below.

6. taxes; cannot exceed statutory rate: nranicipalcorpotation. The principle established by these cases is that section 3275 of the Revision imposes a duty upon the proper officers of a municipal corporation to levy and collect a tax to . -, . . , ' . -, . , pay a ludgment or mdgments rendered against the ° , , corporation, only when the power to levy taxes is elsewhere expressly given by law, and that power has not been exhausted by having levied the maximum rate allowed by the statute; that no independent power of taxation is conferred by that section, but that it can only be exercised in connection with the power of taxation elsewhere conferred by law.

It is claimed, however, by counsel for appellees, that all these cases arose under acts or charters where the power of taxation -was limited to a certain specific rate in the aggregate. This is true, and yet it is difficult to see why the principle established by the decisions referred to does not apply equally to a county as to a city corporation, for, by the law conferring the power of taxation upon the Board of Supervisors, the maximum rate they may levy, for the several purposes named, is also fixed. See Section 710, Revision of 1860, which is as follows:

“That the Board of Supervisors of each county in this state fehall annually, as hereinafter provided, levy the following taxes upon the assessed value of the taxable property in the county:

1. For state revenue one and one-half (now two and one-half) mills on a dollar, etc.

2. For ordinary county revenue, including the support of the poor, not,more tTianfour mills on a dollar, and a poll tax of fifty cents. _ '

3.. For support of schools, not less than one nor more than two mills on a dollar.

4. For making and repairing bridges, not more than one mill on the dollar, whenever the Board of Supervisors shall deem it necessary.”

It will be observed that the law no where confers upon counties, as such, the power to levy any taxes whatever. The Board of Supervisors have conferred upon it, by the above provisions, the power to levy the state taxes within a certain limitation, as well as the county and school taxes with like limitations. These provisions contain and confer the only power that is given by law to the Board of Supervisors to levy any county tax for any purpose (except Sec. 250 of tbe Revision, ■when the warrants of the county are depreciated.)

The board is authorized to levy for ordinary county revenue, including the support of the poor, not more than four mills on a dolla/r, and a poll tax of fifty cents; also, if they deem it necessary, they may levy a bridge tax of not more them one mill on the dollar. This section confers the only authority to levy county taxes, and limits the power therein conferred, just as plainly as a provision in a city charter conferring authority on the corporation to levy taxes not exceeding a fixed rate. But it is said that section 3275 requires, when a judgment is rendered against a county, that a tax shall be levied to pay it, and since section 7Í0 confers authority only to levy taxes for specific purposes, without naming a tax to pay off judgments against the county, the power-to do so must be found in section 3275. ¥e think this argument is not tenable, for one of the evident purposes of ordinary county revenue is for the payment of its debts, whether arising upon county warrants or upon judgments obtained on such warrants.

It is manifest that section 710 was intended to confer authority on the Board of Supervisors, to levy all the taxes proper.to enable the counties of the State to raise revenue for all needful purposes, and that no further power of taxation was intended to be given by. that section, than is therein expressed. If, then, section 3275 gives no independent power of taxation, but only calls that power into exercise when it is elsewhere given by law, then we must look to section 710 for the power to tax; when we do this, we find it there limited, and we can see no solid reason why the limitations contained therein have not the same controlling operation as if contained in a city charter. To our minds there is no difference in principle.

We are aware that the Supreme Court of the United States in Butz v. The City of Muscatine, 8 Wallace, 575, construed section 3275 of the Revision to confer an independent power to levy a tax to pay a judgment against the city, which is in direct conflict with the decisions of this court in the cases before cited. That case arose in the Federal Courts, and was not taken from this court on appeal or writ of error, and. therefore cannot be regarded as overruling the cases on the same question in this court, nor are we prepared to overrule them.

It is further urged that the law confers upon county municipalities the power to contract debts which may exceed its, ability to pay, and at the same time meet the ordinary current: expenses of the county government, with a tax of four mills on a dollar on the taxable property within the county; that, the revenue of the county thus obtained may all be absorbed-in defraying these current expenses, and, in such case, the creditor of the county will be practically denied a remedy for the collection of his debt. There is some force in this argument,, and yet not as much as would seem on first blush; for when the creditor of the county becomes such, he does so in view of what the law is at the time.' He is supposed to know the law,; and what are his rights and remedies, under it. But, if the. law is defective in this respect, the remedy is with the legislature, and not with the courts.

The Board of Supervisors having levied the maximum rate of tax which the law authorized, it had no authority to levy the additional so called judgment taxes for the years 1870’ and 1871. The plaintiff is therefore entitled to a decree enjoining the sale of its lands for such taxes, and for costs of advertising beyond those herein, indicated, which decree will be rendered in this court if plaintiff so elects, or the cause will be remanded, for that purpose, to the District Court.

Reversed.