Buell v. Ball, 20 Iowa 282

Buell v. Ball

20 Iowa 282 | Iowa | 1866

Cole, J.

1. taxex municipal corporartion The plaintiff was, and still is, the owner of about two hundred and ten acres of land, lying in one ^0CVi an^ within the original limits of Lyons City, as defined by the act of the legislature incorporating it. This land was taxed by the city authorities in 1860 and 1861, for city and engine tax, under the following descriptions, viz.: “ S. E. J of N. W. h Sec. 30, T. 82, R. 7, 40 acres;” “N. E. ¿ of S. W. h Sec. 30, T. 82, E. 7, 40 acres; ” “N. W. J of S. E. 1, Sec. 30, T. 82, E. 7, 40 acres;” “N. part, S. E. J of S. W. J, Sec. 30, T. 82, E. 7, 28 acres; ” “N. part, S. W. 1, of S. E. ¿ Sec. 30, T. 82, E. 7, 28 acres;” “all that portion of land, not sold, supposed to be 14 acres, more or Jess, in S. E. J, of S. E. J, Sec. 30, T. 82, E. 7; ” and “ all that portion of land, not sold, supposed to be 20 acres, more or less, in N. E. J, of S. E. J, Sec. 30, T. 82, R. 7.”

The first three descriptions have not been laid off into city lots, nor do they, or either of them, adjoin any land which has been so laid off. They are from about one-quarter to three-quarters of a mile from any city lots. But the forty acres immediately west of the last one of the three descriptions, was subdivided into eight or nine lots several years ago, though none of them have ever been occupied, and efforts to consolidate again have been made.

The next two descriptions lay east of the two last named of the three, and between them and Pearl street. All or nearly all of the original city limits east of Pearl street has been laid off into city lots, and that portion of the city immediately east is quite thickly settled. The city lots fronting on Pearl street and immediately opposite these two next descriptions, are built upon and occupied, and are regarded as desirable locations.

The last two of the descriptions as taxed, embraces what remains of their respective forties which has not been laid out into city lots by plaintiff, or sold by him to others in *288lots of larger area, and two or more streets run through what remains in each description. All of these seven descriptions are contiguous, and have been occupied, cultivated and used' by plaintiff for agricultural purposes for many years.

Upon these facts, or rather rejecting them, the District Court held, “that as the lands which the plaintiff claims to be farm lands were included in the original limits fixed by the act incorporating Lyons city, that they were liable to taxation by the council of said city for municipal purposes, regardless of their situation in other respects, or of the use made of them. And further, that the legality of the assessment of taxes on the same cannot be investigated in an action of replevin against the marshal."

In thus holding, we think the District Court erred. It is true, that in every case involving the rightfulness of city taxes upon the points here made, which has come before this court, the property taxed was situated outside of the original limits of the cities levying the tax, but within the extended limits. See Morford v. Unger, 8 Iowa, 82; Butler v. City of Muscatine, 11 Id., 433; The Burlington and Missouri River Railroad Company v. Spearman et al., 12 Id., 112; Langworthy v. The City of Dubuque, 13 Id., 86; Same v. Same, 16 Id., 271; and Fulton v. City of Davenport, 17 Id., 405. So also in Cheany v. Hooser, 9 B. Monr., 330; City of Covington v. Southgate, 15 Id., 491.

The ground upon which courts interfere in such case is, that private property shall not be taken for public use without just compensation. It is the fact of taking without compensation, and not the time or manner which constitutes the infraction of the constitutional inhibition. The/acf may be as effectually accomplished by an original incorporation, as by an amendment; and the constitutional guaranty would be of little avail, if it could be avoided by mere form. It is the duty of courts to protect the *289substance of every right, and judges should be “ wise as serpents and harmless as doves” in discovering every device and removing every form which effectuates or clothes a wrong.

2_^ peL 3. —pay-taxes, The allegation (even if proved), that plaintiff asked for and aided in procuring the original charter or act of incorporation, could have no legal effect in this case; for, whether he assented or objected, he cannot avail as against the declared legislative will, and the right of the legislature to enact the original charter, did not depend on the assent of plaintiff, or the proprietors or inhabitants of the corporate territory. Morford v. Unger, and other-cases, supra. Nor could the allegation (if proved), that plaintiff had, for several years, paid similar taxes upon the same property, defeat his right of action now, or operate by way of estoppel. Morford v. Unger, supra.

4_re_ pievm. The right to test the legality of, or the constitutional and lawful right to levy the taxes, by action of replevin against the marshal, was fully considered and determined by this court, in the case of Macklot v. The City of Davenport, 17 Iowa, 379. Where there is want of authority to levy the tax, he may replevy; aliter, where there is authority irregularly exercised.

The grounds upon which we place our decision as to the lands we hold liable,' and those we hold not liable to the tax, are sufficiently stated in the cases referred to supra. We hold, upon .the facts proved, that the first three descriptions set forth above, they being the three whole forties, are not liable to the tax; the other four descriptions, they being the parts of the several 'forties, are liable.

II. As to the sidewalk tax, there are substantially three objections made by the plaintiffs:

First. The description'of the real estate is void for uncertainty; it is'as follows: “Commencing at Fourth avenue, *290west side of Seventh street, in Buell’s addition, and running south 480 feet; property not laid out, but corresponding to block 3, range 7, Buell’s addition.” A recognizedly correct map of Lyons city is before us as part of the evidence in this case, and from it we see that block 3, range 7, lies immediately west of where the walk was in fact built, and is four hundred feet long; and the width of Third avenue, which is projected but not yet opened through where the walk was built, is eighty feet, making the four hundred and eighty feet. The description itself is concise and reasonably certain, and with the aid of the map is very perspicuous and definite. This objection is not well founded. See Burlington & Missouri River Railroad Company v. Spearman, &c., supra.

6_lot; definition. Second. It is objected that this piece of land was not a “lot;” that the city only has authority to “require owners of lots to pave and repair one-half in width of the s^reets contiguous to their respective lotsand that “ pave and repair ” does not mean to build a sidewalk. The testimony shows that the sidewalk was six feet wide and built of two inch plank on stringers, and that a portion of it was elevated on bents some fourteen feet, and had a side railing to protect persons from falling olf.

7_,lpave and repair.” The word “ lot,” means any portion, piece or division of land (Web. Die., “Lot”), and is just as applicable to the piece of land described, as if it had been duly pitted and recorded as lot one, in block one, or any other number, or as to any other lot in the city. So with the word “ pave; ” while its primary meaning is to lay or cover with stone or brick, so as to make a level or convenient surface for horses, carriages or foot passengers, it also means to prepare a passage. Web. Die., “Pave.” Could it be reasonably contended that the authority to require the owner to pave the street in front of his lot, only gave the power to require him to lay down the *291paving stones after the surface was prepared and made ready for them? If he may be required to prepare the surface to receive the paving stones, may he not also be required to remove an obstacle, such as a root, a stump, or a tree ? And if so, may he not be required to do any excavation or filling necessary to prepare the surface ? We think the word “ pave ” is used in that connection as a comprehensive ultimate term, and that it includes all things necessary “ to make a level and convenient surface for horses, carriages and foot passengers,” of any convenient, common or practical material.

& — assessment of expenses. Third. It is further objected that there was -no petition for the ordinance to build the sidewalk to Fourth avenue, for that by fraud, “ Third ” was stricken out and , . . . “Fourth inserted after the petition was signed; that the council never assessed the expense, nor was due notice of any such assessment ever given; nor was the sidewalk of any advantage to the plaintiff, nor done at his request.

The city charter provides, sections 31-35, that the marshal give thirty days’ notice of the assessment, levy and rate of tax, and that during that time any person may appear before the council and have errors corrected; that the mayor shall issue his warrant and the collector may demand the tax, and if not paid, may distrain personal property and sell the same, and that the taxes on real property are a lien thereon, and it may be sold therefor. Much of the argument of counsel has been devoted to these sections and their construction, as applicable to this sidewalk tax. But in our view, they have no application whatever to it; they relate to the general and special revenue taxes of the city, but have no relevancy to improvement taxes, such as for paving, grading, &e.

Section nineteen of the charter which defines the powers conferred upon the city, provides among other things as *292follows: “Fourteenth, to cause the streets and alleys of the city to be paved, and the pavements to be repaired, and in that end it may require the owners of lots adjacent to which it is to be done, to pave and repair one-half in width of the street, contiguous to their respective lots, and in case of -neglect after a reasonable time named in the order, the same may be done by the city, and the expenses may be assessed on such lots, which shall have the effect óf a tax levied thereon, and they may be sold therefor, as for a tax, subject to the same right of redemption.”

PI/EVIN: fraud in obtaining passage of an ordinance. An ordinance was passed under this provision' of the charter requiring owners along where the sidewalk in controversy is situated, to build sidewalks of certain materials specified, within ten days, and if not built, the street commissioner was directed to build it and assess the cost thereof to the respective lots. The walk was not built by the owner, and the street commissioner did build it and assessed two hundred and fifty-three dollars and thirty cents to the lot in question. Under these circumstances, it is of course immaterial whether the council ever assessed the expense or gave notice thereof, for they were not required to do either. Nor can the plaiutiff in an action of replevin against the marshal, be permitted to contest the tax by showing that the ordinance was procured to be passed by fraud, or that the walk was of no advantage to plaintiff or was not done at-his request.

lo. — lien upon lot mone. But it is further objected by plaintiff, that under the 14th subdivision of section 19 of the charter, supra, the lot alone is liable for the assessment upon it, and that x personal property of the owner cannot be levied upon or sold to satisfy such tax. And in this view we concur. The previous sections referred to (§ 31, et seq.) relate alone to the general or special revenue of the city, and hence we cannot find in them any authority for seizing *293personal property to satisfy an assessment for improvement. We must look, then, to subdivision 14 for the authority, and that provides that the expenses assessed “ shall have the effect of a tax levied thereon, and it may be sold as for a tax, subject to the same right of redemption.” The effect of the assessment is to create a lien on the lot, and for which it may be sold; but no express authority is given to seize or sell the personal property of the owner for such assessment. In the absence of such express authority, no such power will be inferred.

There is a marked difference and clear distinction between an ordinary revenue tax and an assessment for an improvement.

ii. — constitutional law* The owner of real property is, or may be, made personally liable for the ordinary and special revenue taxes levied thereon; and it seems to have held that it is competent for the legislature to tax any given species of property to the entire value of the property itself. Armington v. The Town of Barnet, &c., 15 Verm., 745; McCulloch v. Maryland, 4 Wheat., 316. But is it competent for the legislature to provide for .improvements upon the property of another against his will, or without his consent, and make him personally liable beyond the value of the property, or personally liable to any extent therefore. See Childs v. Showers, 18 Iowa, where it was held that it could not be done as in favor of an individual, but whether it can be done as in favor of the public, is perhaps a different question and one upon which we express no opinion.

III. The tax or assessment for grading certain other lots rests upon the same provisions and principles as the sidewalk tax just disposed of. Under the city charter there is no power conferred to seize the personal property of the owner for such taxes or assessments.

*294It follows, therefore, that the judgment must be reversed, and the cause remanded for retrial upon the basis indicated in this opinion.

Reversed.