Waller v. Jaeger , 39 Iowa 228 ( 1874 )

Day, J.

The case presents for our consideration two questions: First. Has the city council power to change the assessment as returned by the assessor? Second. Do the circumstances disclosed justify the action of the council?

I. The charter of the city of Dubuque confers upon it power to provide for the assessment of all taxable property in the city, with reference to taxation for city purposes.

i. taxation • powero?ncity council. Section 4, chapter 32, of the revised ordinances of the city, is as follows: “ The council shall, at its first regular meeting *n September, appoint a committee on assessments, consisting of one alderman from each ward, to -whom all appeals from the assessment shall be referred, who shall hear and decide upon all such appeals, and shall also equalize the assessment, if, in their judgment, it shall require revision, and shall report their proceedings to the council at the first regular meeting in October.”

Section 739, of the Revision, provides that the Board of Supervisors of each county shall constitute a board for the equalization of tlie assessment, and shall'have power to equalize the assessments of the several persons and townships of the county, and add to said assessment any taxable property not included in the assessment as returned by the assessors. We think it was intended in the section of the ordinance above named, to confer upon the committee of the council the same powers respecting city taxes, as is conferred upon the Board of Supervisors, in section 739 of the Revision respecting the taxes there contemplated.

This power is a very essential one, and without it any scheme of taxation would be incomplete. We are of opinion that, in a proper case, this committee of the council has power to add to the assessment list returned by the assessor, property which it is evident has been omitted therefrom.

2____ mortgage. II. The next question is not clear from doubt. Yet we feel constrained to hold that the circumstances of this case justified the committee of the council in the conelusion that the consideration named in the several conveyances to plaintiff was a' mere loan to the respective parties named, and that the form of the transaction was adopted merely to exempt the amount of the loan from liability for taxes. All the circumstances of the case are consistent with this conclusion. The plaintiff had money to loan. He was anxious to avoid the payment of taxes. The various vendors wanted to borrow, and in response to their application plaintiff suggested a deed to him, and a lease with the privilege of repurchasing. The rent reserved is just ten per cent upon the amount for which plaintiff agrees- to re-convey.

But the strongest circumstance, perhaps,, of all, is the fact that when plaintiff went before the committee of the council in support of his petition to be discharged • from this assessment, he contented himself with merely detailing the fact and circumstances connected with the execution of the deeds and leases, and did not claim that there was a bona fide sale, nor that the transaction was not merely a loan.

A careful examination of the entire return of the council leads us, with but little hesitation, to the conclusion that there was no real sale of the property described in the petition, and that the intention was to make a loan in such manner as to avoid the payment of taxes. We are of opinion, therefore, that the judgment of the court below should be

Affirmed.