34 Iowa 163 | Iowa | 1872
I. The main question raised by the demurrer, and presented in argument is, whether, under the charter and ordinances of the city of Dubuque, and the general statutes of the State, an action in equity may be maintained against the defendant’s lot to subject it to the payment of a special assessment levied thereon to pay for the improvement of the street on which the lot abuts.
This provision of the charter confers the power on the city to levy a special tax for specified street improvements against either the abutting lots or the owners. It also confers power to collect such assessments — whether against the lots or against the owner — under such regulations as may be prescribed by city ordinance.
An ordinance was accordingly passed, October 10, 1870, the last clause of the 10th section of which provides the manner in which assessments of this character may be collected, in these words : “ Suit may be instituted in any court having jurisdiction to subject the property to the payment of such assessment.”
Is this mode of collection authorized by the provision of the charter before quoted? It has been held that a grant of power in a city charter to “ levy and collect taxes ” does not confer the power to provide for such collection by a sale and conveyance of the property. Ham v. Miller, 20 Iowa, 450; Merriam v. Moody's exr's, 25 id. 163, 172; McInerney v. Reed, 23 id. 410. And it has also been held that “where such is the grant, and the charter or constituent act is silent as to the mode of collection, the grant of power is not nugatory, but the city may provide for the collection of the tax by judiciary proceedings.” McInerney v. Reed, supra; Merriam v. Moody's exr's, supra, and cases there cited in the opinion of Dillon, Ch. J. Such was the course adopted in respect to the tax involved in this case; the charter conferred the power to levy and direct the mode of collection. The city council, by ordi
It is urged, however, by appellee, that since neither the charter nor ordinance provide that the tax shall be a lien on the lot, its collection cannot be enforced by action in court. We have seen that the charter confers the porver on the city to levy the tax on the lot, and confers power on the city to collect the tax thus levied, under -such regulations as may be prescribed by ordinance. The tax was levied in pursuance of competent authority, and the same authority is given to collect it by action to subject the property to the payment thereof. Whether the levy of the tax under the grant of power contained in the charter created such a charge or lien on the lot as wmuld aífect a subsequent purchase!1, we need not determine, as this question is not involved. It seems clear, however, that the remedy adopted for the collection of the tax is authorized by the city charter and the ordinance passed in pursuance thereof.
II. It is further insisted by counsel for appellee, that the power to collect the special tax by action, if it ever existed under the charter, was taken away by the act of April 7, 1808, which act is as follows:
“ Section 1. Be it enacted by the General Assembly of the State of Iowa: That to all the cities and towns heretofore incorporated under special acts and Charters, and which do not now possess the right to sell personal or real property for the collection of delinquent taxes, including special rates and assessments, full power and authority is hereby granted to sell real and personal property for delinquent taxes, including special rates and assessments levied upon property for the improvement of streets, alleys, sidewalks^ the construction of sewers, and other improvements of like nature; but no deeds heretofore given by the city authorities, where there was no legal power to sell, shall be considered as valid by any thing herein contained.
The city council or trustees of any incorporated city or town, acting under special charters may if they deem best, cause to be certified up to the clerk of the board of supervisors all taxes, rates, and special assessments the same as though said city or town had been incorporated under the general incorporation law, known as chapter 51 of the Revision of 1860, and the amendments thereto; and when so certified, said taxes, rates, and special assessments shall be collected and accounted for in all respects the same as is provided by section 3, chapter 25 of the acts of the tenth general assembly.”
That this act is applicable to the city of Dubuque, and conferred upon it the power to collect delinquent city taxes, including special rates and assessments levied upon property for the improvement of streets, etc., in the manner specified in the act, there can be no doubt. And that this act very materially enlarges the power previously possessed by the city under its charter, in this respect, is equally clear, but it is not so inconsistent with the provisions of the charter as that we could hold the latter to be repealed by implication. A subsequent act does not necessarily repeal a prior one on the same subject. The act of 1868 contains no repealing clause, and it and the provisions of the city charter, on the same subject, are not in conflict, and both may stand. This being so it is the duty of courts to so construe them, it being well settle
Our conclusion is, tbat the plaintiff’s action may be maintained under the charter and ordinances of the city of Dubuque, unaffected by the act of April, 1868, and tbat tlie demurrer was improperly sustained. ■
Tbe judgment, therefore, will be
Reversed.
