delivered the opinion of the court.
The court sustained a demurrer to the petition in this case^ and the» only question that arises is, whether the City of -Carondelet had power by its charter: to authorize the bringing of a personal suit against the defendant to the use
By the “ Act to incorporate the City of Carondelet,” approved March 1st, 1861, (Sess. Acts 1851, p. 139,) in § 4, Art. V., power is given the city to remove all obstructions from the side-walks, and to provide for the construction and repair of all side-walks and curb-stones, and for the cleaning of the same, and of gutters, at the expense of the owners of the ground fronting thereon. Sec. 5 invests the city council with power to make all ordinances necessary and proper for carrying into effect the powers specified- in the preceding* section. By § 5, in Art. YIL, power is delegated to the city council,-by ordinance, to levy and collect a special tax on the holders of lots on any street, lane or avenue, or part of any street, lane or avenue, according to their respective fronts owned by them, for the purpose of grading or paving the side-walks of such street, lane or avenue, and for the purpose of lighting the same. And § 6, same article, gives the council power to direct by ordinance the manner in which any property, real or personal, advertised for sale, or sold for taxes by authority of the corporation, may be redeemed.
In pursuance of this charter, the city council of Caronde-let, in August, 1858, passed an ordinance in relation to curb-stones and side-walks. The ordinance provides (§ 1) that for the setting of curb-stones and laying of side-walks, upon all property belonging to the city, and upon all lots where the owners object to have the same done by the city, or where the owner or owners neglect or refuse to have the same done as provided for by ordinance, the engineer, under the direction of the mayor, shall proceed to let out such work by contract to the lowest and best bidder, taking good security for the faithful performance of the same. Provision is then made for notifying the owner or owners of lots, when the council directs the setting of curbstones and laying of side-walks on any street; and where the engineer contracts to have it done on behalf of the city,
By an ordinance, approved February 24th, 1859, curbing and paving was ordered to be done in front of defendant’s property on certain streets, which he neglected or refused to do, and the work was let out by the engineer to the plaintiff. The 8d section of this ordinance directs the manner in which the engineer shall award the contracts, and provides that they shall be given to the lowest and best bidder, “ the city, however, being in nowise compelled to pay for said work any sooner than the amount of cost thereof, to be levied on the property respectively, shall have been collected and paid into the city treasury.”
The court below held that this action could not be maintained. The interest involved is purely local, but the principle is important. Corporations have no powers except such .as are expressly granted in their charters, and such as are
“ A tax, in its essential characteristics, is not a debt, nor in the nature of a debt. A tax is an impost levied by authority of government upon its citizens or subjects,, for the support of the State. It is not founded on contract or agreement. It operates in invitum. A debt is a sum of money due by certain and express agreement. It originates in, and is founded upon contract, express or implied ”—Pierce v. Boston, 3 Metc. 520 ; Camden v. Allen, 2 Dutcher, 398.
Unless the power is specifically delegated or expressed, no right of action exists for taxes, and they cannot be turned into judgments. Both the State and municipal corporations have a much better and more expeditious remedy. They have the right by summary process to enforce collection, by levy and sale; and when this power exists, complete and ample as it most assuredly is, it would be monstrous, without plain and express authority to that effect, to say that they could abandon at pleasure the usual and simple manner of making collections, and subject the delinquent tax-payer to all the harassments, vexations, and costs of a legal proceeding. That the special tax assessed or apportioned was to be in accordance with the respective fronts of ground on the street, would seem to denote an intention to
The 12th section of the ordinances under which this proceeding is sought to be enforced, which declares that the mayor, whenever he deems proper, may order suit to be brought for non-payment of the special tax, instead of selling the lots under advertisement, is, in our opinion, without authority, and not warranted by the charter. And such seems to have been the interpretation of the city authorities themselves, for by the very ordinance under which this contract was executed, it is provided that the city shall in nowise be compelled to pay for the work any sooner than the amount or cost thereof shall have been collected, by levy and sale of the property, and paid into the city treasury: thus plainly implying, if not expressly declaring, that the property on which the special tax was charged was the • subject matter out of which payment was to be obtained. The plain meaning and import is, that the city is primarily liable, and that the contractor agrees to wait for his pay till the city shall collect it by a proceeding against the property on which a lien is constituted. The improvements are made by the city, and the contracts are with the city. There are but two parties to the contracts : the parties bidding and the parties accepting. The property' holders are not parties to the contracts, nor is there any privity existing between them and the contractors. The city makes out the apportionment, levies the assessment, and .^enforces the collection.The city has a lien on the property; the contractors have not. It may be said that the property may not be sufficient to pay the assessment. It is a sufficient answer to this to say, that it will not be presumed that it was ever intended that a corporation, in the exercise of this high prerogative power, should absorb the whole value of a person’s property, and then come on him for a deficit.
In our opinion, the demurrer was properly sustained.
Judgment affirmed.