In re the Appeal of the Des Moines Water Co. , 48 Iowa 324 ( 1878 )

Rothrock, Ch. J.

I. There are no disputed facts in the case. It was submitted in the court below upon the articles of incorporation of appellant, the ordinance of the city, and an agreed statement of facts. To the end that the case may be disposed of as briefly as possible, consistent with an intelligent understanding of the facts, we have not set out the record in full, but have given the substance, so far as necessary to a fair understanding of the questions involved.

1. torporatim?: corporation, It is first insisted by appellant that its property is exempt from taxation, because it is devoted to a public use; the city council having control over the rates the company may charge the public for water, and having, by its ordinance, reserved the right in the city to purchase the property at a price equal to its cost, and ten per cent per annum interest thereon. This view we do not believe to be correct. An examination of the articles of incorporation, and the ordinances of the city, clearly demonstrates that appellant is a private incorporation for pecuniary profit, and the use of water furnished by it to the city and its citizens does not render its land, engines, pumps, machinery, mains and appurtenances public property. The same argument would exempt from taxation the property of omnibus lines, whose rates of fare and mode of doing business are controlled by the ordinances of the city. The property is no more devoted to a public use in one case than the other. The fact that the city is furnished water, for which it pays what is presumed to be a fair consideration, does not change the property from a private to a public use. The reservation by the city of the right to purchase the works does not invest it with any title or right to the property, or in any sense make it public property, until it shall elect to purchase. It is not an executory contract that the company can enforce by an action for specific performance, nor can it recover damages for its breach.

2. a.-:-: of ares. II. It is next claimed that the property is exempt from taxation by section 797 of the Code, which exempts “the property of the United States, and of this State, including agricultural college and school lands, and all property leased to the State; the property of a county, township, city, incorporated town or school district, when devoted entirely to the public use, and not held for pecuniary profit; public grounds, including all places for the burial of the dead; fire engines, and all implements for extinguishing fires, ivith the grounds used exclusively for their buildings and the meetings of the fire companies. * * * * * * * *”

Conceding that by this section fire engines, and. all implements for extinguishing fires, with the grounds used for their buildings, etc., are exempt, whether owned by a city or town, or by an incorporated company or an individual (but which we do not determine), still we think the works of appellant are not a fire engine within the meaning of the statute. A fire engine is an engine the primary purpose o.f which is to extinguish fires. The water-works are a great force pump which supplies the city and its inhabitants with water for all purposes to which it may be applied. The force is constantly applied for crdinary use, and for occasional use in times of fire.

3 _._. assessment. III. Again it is contended that “if the water-works are subject to taxation, its property, both real and personal, all of which is represented by its capital stock, should be assessed to its stockholders.”

Sections 797, 798, 799 and 800 of the Code provide that certain property therein described shall be exempt from taxation. The property owned by corporations is not included in such exemptions. Section 801 provides: “All other property, real or personal, is subject to taxation in the manner directed.” Section 807 provides that the property of insurance companies shall be taxed upon its gross premiums.

Section 810 directs that property of railroad companies shall be taxed upon an assessment made by the executive council. Other sections prescribe the method of taxing-shares of stock in national banks, and the property of express and telegraph companies.

Section 813 provides that depreciated bank notes and the stock of corporations and companies shall be assessed at their cash value. •

Section '821 classifies “stocks or shares in any corporation or company not required by law to be otherwise listed and taxed,” as personal property.

Section 823 provides: “The assessor shall list every person in his township and assess all the property, personal and real, therein, except such as is heretofore specifically exempted if} if} if} if} if} if} if} * *

It is argued that as section 813 directs that the stock of corporations and companies shall be assessed at its cash value, no assessment can be made upon the property of the corporation, because this is the manner directed for the taxation of the property of corporations, when no other mode is-provided.

This, in our opinion, would be correct, if it were not for the requirement of section 823, that all property, real and personal, must be assessed, excepting. such as is specifically exempted. This reqirires that the real property of corporations, of the character of appellant, must be assessed, and the requirement is made iu as plain terms as if it were so expressly declared. We cannot be aided in the construction of this statute by the cases cited by counsel for appellant, because no one of them construes a statute like this. We are not unmindful, either, of the rule so well stated in Cooley on Taxation, 165, that “when it is once decided that any kind or class of property is liable to be taxed under one provision of the statute, it has been held to follow as a legal conclusion that the legislature could not have intended the same property should be subject to another tax, though there may be general words in the law which would seem to imply that it may be taxed a second time. ”

The shares of the stockholders of the water company have not been assessed. Whether they can be under a proper construction of the statute, and whether that would be double taxation, we do not determine; but we are united in the belief that the statute plainly and clearly makes the property of the corporation taxable. The rule is that all property is taxable, and no exceptions are allowed except such as come within the. specific exemption provided by statute.

4. _. . —• IY. We think the land, building, machinery and water-mains, are all real estate, and though the whole length of the mains are not laid upon the lots owned by appellant, and extend from Des Moines into Lee township, yet they are appurtenant to the water-works or main structure. The argument that if the mains are real estate, that part which is laid in Lee township should' have been there assessed the same as any other real estate, is answered by the fact that their mains acquire then real estate character by being appurtenant to the water-works, and in a conveyance of the works would pass as incident to the principal thing, without any conveyance of the land where they are located. Under such circumstances no assessment need be made except in the place where the waterworks and lots are situated.

V. Lastly, it is contended “that the Circuit Court erred in raising the assessment of said water-works from fifteen thousand to sixty thousand dollars.”

5.--: equalization: appeal. The Code, § 831, provides: “That any person who may feel aggrieved at anything in the assessment of his property, may appear before said board of equalization, in person or by agent, at the time and place mentioned in the preceding section, and have the same corrected in such manner as to said board may seem just and equitable, and the assessor shall meet with said hoard and correct the assessment books as they may direct. Appeals may be taken from all hoards of equalization to the Circuit Court of the county where the assessment is made.”

The person aggrieved at the assessment of his property may appear and have the assessment corrected. No one has the right to appear before the hoard of equalization as a party to a proceeding, and have another’s assessment corrected or raised. Whether the city or township has the right to appeal from the action of the hoard of equalization we need not determine. It would seem to he a novel proceeding to allow the same authority which equalizes the assessment to appeal from its own order. However that may he, no appeal was taken by the city in this case. We think, when this appeal was presented to the Circuit Court, the only question to he determined was whether the water-works company had just cause to complain. If it had not, that was the end of the inquiry.

We are reminded by counsel for appellee that in ordinary-appeals from justices of the peace the judgment against an appellant may he increased. But this is by virtue of the statute, which provides that in such cases an appeal brings up a cause for trial on the merits and for no other purpose, and that any person aggrieved may appeal from the judgment of a justice. Code, §§ 3515, 3590. The order, so far as it increases the assessment, will be reversed, and, as the cause was submitted upon an agreed statement of facts in the court below, an order will be made here fixing the value-of the property of appellant at fifteen thousand dollars.

Eeyersed,