Daily Democrat and news. [volume] (Davenport, Iowa) 1859-1864, 1862-08-28
Important Decision.

~'AA' D.S' W. In Scott District Court
City Of Davenport. A'su's r'fn' 1869:
oousf's DBcIsIox OF DRNUsass 70 AHswBn.
Two quss.,oss we're ssgasd under the de-
murrsr . the answer. te-vit:
Let. IL the plaintiff entitled to specific Iss,
for the 81. 100 which 10 the sm mt alleged I:
have been due for interest on the bonds issued
prior 70 January 22d, 1855
90 this part Of the pisinlif's esss an ol
the opinion that they are entitled to the levy
Of . specific tax. The ground Of this opinion
10 the express language Of section 8 Of th.
amended charter Of the city. approved Jasus
~ %. 1885. and the decision OF the Supreme
Court bet ween these same parties. reported IL
| IL Iowa
Az the city does not set up In its snswer any
good reason for not levy'ng such specific
tsx, % it 10 required = do By section above
the demurrer to this part Of the snswsr 10 SOS
tanned, and the city, unlsss by smspdmsnt e
iss ans~sr it can show good reason against It
will be required to levy . specific TAX to pay
,L. said s., 100. being for interest on bonds IL
sued prior TO January 22. 1856.
| The other main question argued under th>
demurrer vas :-Is the plaintiff, under ths
svermspts Of the answsr entitled to specific
levy to pay the full amount Of the balance ol
bis judgmsntsf
The relief prayed for 10 that the City shall
forth With "lsvy and ssllsst . epee!fe ssx 4
pay the balance dus" on the plAinti6's juje0ent
Tie SON Of q 100, only Of his judgment 10 o.
legged 70 have been for interest % the bond'
Of the city ,ssued prior to Jan. %. 1866; The
6alanes 6siag for interest on Other bonds.
The answsr ssts Up that The city under III
charter has no authority 10 levy
and collect . tax greater than one
half per cent. excepting on the bonds L.
susn prior to January %. 1855, ard that the
city has already "levisd . tax Of one half pc,
cent. on the assessed value Of the property ol
the said city for 1862"
Can the plaintiff legally require more ol
the cityl II 80. he is entitled 70 mandamus
II he cannot legally require more he is ne'
thus entitled. l admit the gravity and i'm
portance Of the question.
Yet it seems to me that the principles upon
which it must be determined are we'll settled
and plain. Very briefly and without slabo
ration. l will state my views.
My fret proposition is. that the city cannot
exercise the power or right Of taxation unlese
such rower Or right be expressly conferred BY
the Legislature.
The principle in the law of taxation 10 90
familiar as to require no authorities to support
it 1t 10 expressly recognized in IL Iowa, p.
| 646. where it 10 said that NO property can
lawfully be taxed until the Legislature su-
| thorizes AMI r<qu,ree it to be done, and when
! the act requires it to be done in particular
way. that way alone can be pursued
II th,s be admitted. then We must resort 10
| the statute to see what authority the Lsgisla-
| turs has conferred upon the defsndent 20 10
the levy Of taxes lfit has conferred no pow.
er Of this kind, then the city can exercise
none. Ifit has conferred euch power to q
limited extent, the city can exercise 1t to that
| extent. but no further.
The power Of the city in respect to the levy
| and collection of taxes is contained In Section
| l Of Article v Of the city charter. The grant
of power to the city 10 in these words. SEQ
l. The City Council shall have power and
authority to levy and collect taxes upon all
taxable property, real. personal aud mixed.
within said city, not exceeding one half per
| cent. per annum upon the assessed value
| tt ereoi,' etc.
Thus the grant which gives the power con.
tains also the limitation. Without this grant
will It be contended that The city could legal
Is levy . tax at all Z Certainly not. Then
| under this grant how can the city levy tax,
| and how can it be required to levy . tax Of
more than ons.hslf per cent whom the grant
expressly .imits. and restricts the city to .
levy =" not ercseding' that rate.
Why do require the levy of specific tax
| for the $2.lOO. Because Section 8 Of the
amended CHARTER a. to that portion Of the
plaintiffs debt expressly gives him the right
to make . lew and expressly gives the citv
po'Usr and authority to make the levy and
collect the tax.
It will not do to cay that the power to create
liability will give % 40 incident the power to
levy tax to satisfy eueh liability. suppoee
be city charter to bs juet - it now 10 and that
the Legislature by some omission or inadvert
ance had failed to confer the power on the
City Council to levy and collect any tax at oil
It would still be liable ~ held in Rusch ". tie
City Of Davenport.- Tor the Dsgli
gencs Of its officers and to have judgement
therefore rendered against III Would such .
judgment without more, give the right to lew
. tax to pay itf Surely not. Such . right
can flow from the Legislature and from no other
source. The charter Of the City Of Muscatins
eonta:ns similar Limitation % eur own % 20
the power Of taxation. In enc siogis year
there we're several feeds in thst city which did
damage to property owners exceeding $50, ,OOO
And for this damage the city wss held Liable
and judgments were rendered against it,
Would the rendition Of these judgments give
the city the right to levy specific tax ct once
to pay each Of theml Or would their rendi
tion give 1t any right to levy any greater tag,
or sny other tax. than that mentioned in the
charteri Obviously not. And the same prin.
eipls will apply - to liability for borrow ed
money or for debt created by subscription to
stock 10 rail road. Ny second proposition
therefore 10 that ths pososr to create liability
does not imply o. carry With Il the po,esy to levy
and collect . tar to satisfy and disehsrge such 4
ability.
But Am referred to Section 3.275 Of the
Revision. This section provides that '.if the
debtor corporation Issues no scrip or evidence
Of debt. tax must bs levied ~ early - pract
icabis sufficient to pay of the judgment With
interest and csst." This provision occur, IN
the general Laws Of the State in the ehsptsr
on Exscusions. 10 the 6rst place the validity
OF this section may seriously bs question ed
The object or subject Of II not being oppressed
IN the oct ; and especially may its VALIDITY be
Questioned II it be construed % being appli-
cable to city which has . special charter
prescribing its rights and its powers. and %
giving u saeh city dississe, s.bsesmeiss orsrs
II shs poa'sv Of saxasjoa.
but soossd'ng iss validity yet IN ~ spip.
see shts Seettos Of the Code does not .nntaiu
: grant Of the power TO levy tax. 81 d.
u enlarge the right ~ The Aity g lew ID
collect taxes' and Isdsr It The eitv saapo(
levy and ealleet any tax not auttosised ~ the
terms Of its ebagaer. For silluserasion San
00nA Eho Cite ChaA -