39 Iowa 56 | Iowa | 1874
Lead Opinion
It was held by this court in The Dunleith & Dubuque Bridge Co. v. The City of Dubuque. 32 Iowa, 427, that the property of railroads within the city of Dubuque is liable to municipal taxation the same as other property. The decision in that case was rendered in October, 1871. Subsequently to the assessment and levy of the tax for which the action before us was brought, and after the tax became due and collectible, an act of the legislature was passed containing the following provision:
“ Every railroad company which shall have paid all taxes on the gross earnings provided for by Chap. 105 of the Acts of the 13th General Assembly, shall be released from the payment of all other taxes which may have been levied upon the
Two questions are presented for our decision which arise upon the facts of the case: 1. Is the liability and obligation of defendant for the payment of the tax discharged by the enactment just quoted? 2. ’ Is the rolling stock of defendant used in the State liable to municipal taxation in the city of Dubuque?
- I. The first question, which we now proceed to consider, involves the constitutionality of the statute, by -the force of which, it is claimed, the taxes sued for a\’e discharged, and are therefore not collectible.
No question is made as to the legality of the assessment and levy of the taxes in question. The lawful power and right of the city to impose them upon the property of defendant was determined in The Dunleith & Dubuque Bridge Co. v. The City of Dubuque, supra. The sole question, then, to be determined in this branch of the case is this: Can the legislature discharge the obligation of defendant to pay the tax, as it is attempted to be done by the law in question?
By the lawful levy of the taxes in suit, which were assessed against the defendant, and not in rem, defendant became personally bound for their payment. This obligation created a debt in the sense of the term when applied to a liability for the payment of money. This doctrine and the principles upon which it is founded, are supported by the following authorities: Dugan v. The Mayor, 1 Gill. & Johns., 499; The Mayor v. Howard, 6 Har. & Johns., 333; Gordon's Ex'rs v. Mayor of Baltimore, 5 Gill., 231; Ryan v. Gallatin County, 14 Ill., 78; Dunlap v. Callatin County, 15 Ill., 7; Mayor etc. of Jonesboro v. McKee, 2 Yerg., 167; City of Oakland v. Whipple, 39 Cal., 112; The State v. Poulterer, 16 Cal., 514; People v. Seymour, 16 Cal., 332; Portland Dry Dock & Ins. Co. v. Trustees of Portland, 12 B. Monr., 77.
The view just expressed is based upon the fact that property held by a municipal corporation, and contracts made with them, are entitled to the same protection of law as those wherein natural persons are alone concerned. The right of a city to' hold property, and the binding nature of obligations entered into with it, cannot be doubted. Its rights in these respects are protected by the constitutional guarantees above cited. This doctrine is nowhere denied.
Counsel for defendant, in opposition to these views, assert that a tax is a mere burden or duty, and is not a debt. In support of this position they cite the following cases: The City of Camden v. Allen et al., 2 Dutch, 398; Perry v. Washburn, 20 Cal., 318; Pierce v. The City of Boston, 3, Met., 520; Lane County v. Oregon, 7 Wal., 71; Shaw v. Picket et al., 26 Vt., 482; The People v. Craycroft, 2 Cal., 243; Kidder v. Boom Co., 24 Pa. St., 193.
It is admitted that the four cases first named hold that liabilities for taxes are not to be regarded as debts in the ordinary sense of the word so far as to authorize actions to be brought for the recovery thereof, or to require them to be considered the proper subjects of set-off, or to bring those levied by state authority within the terms of the statute of the United States, making treasury notes legal tender for debts. Upon a careful examination of the other cases mentioned above, we do not find that they possess the force claimed for them. The opinion in Shaw v. Picket contains expressions used arguendo, which give some color to the claim of counsel that it supports their position. The rulings upon the points involved in the case, however, do not have that effect. The same remark may be made with more confidence in regard to the other cases.
It may be admitted that the obligation for the payment of taxes will not support an action, when the law. provides another remedy, and that taxes are not the subjects of set-off, nor within the purview of the legal tender act; yet it by no means follows that a tax is not a debt in the true sense of the
The language of the cases under consideration used upon this point is indefinite and wanting in accuracy. It is said that liabilities for taxes are not debts “ in the ordinary sense of the word,” or “ within the common understanding of the word.” The word debt is defined by Webster to be “that which is due from one to another, whether of money, goods or services; that which one person is bound to pay or perform to another.” Certainly this is the “ ordinary sense, the common understanding” of the word, which may be accurately applied to liabilities for taxes. The doctrine of the cases under consideration, so far as it tends to deny that the same rights of property attach to liabilities for taxes as to debts generally, is in 'conflict with principle and authority.
2. A position of Messrs. Withrow, Edmonds and Ransom, counsel for other railroad companies interested in the questions involved in this discussion, demands particular notice because of the able and ingenious manner of its presentation, and the specious character it is made to assume. It is best and most fairly presented by using their own language, which is as follows : “ We shall endeavor to show, both upon principle and authority, that the right to levy and collect taxes is a public and not a private right, and that it can in no sense, and in no case, become a private vested right. The principle upon which rests the distinction between public and private rights may be stated as follows : Rights which may be conferred upon, and exercised by a private person or corporation, may be private when held and exercised by a municipal corporation / while rights exercised by a mionicipal corporation, but which can never be exercised by a private person or corporation, are necessarily public T
The law as a science is distinguished for its accurate use of words and terms. When this characteristic of the science is lost or disregarded, in legal discussions, confusion follows and erroneous conclusions are likely to be-reached. The ingenious substitution of one term for another, or the use of a word out of its true place,' often gives a speciousness to an argument that bewilders and is difficult to expose. And this is the fault of the language above quoted, which we will endeavor briefly to point out.
In the first place rights are not classified or distinguished as public and private. No authority makes any such classification. Wrongs are distinguished as public or private and the relations of persons may be either public ox private. The legal mind at once grasps the ideas intended to be conveyed by the use of these terms, but it fails to comprehend the
The word rights occurring in the passage quoted above is improperly used in place of the term powers. By substituting the last named word for the first, the doctrine announced would probably be unobjectionable and find support in the authorities. A public corporation is clothed with the power to levy taxes; such authority cannot be conferred upon a private person. The power may be said to be public. So the corporation may be authorized to acquire property; a private citizen possesses the same power, which, when it is exercised by a public corporation, is properly called a private power. This, and nothing more, is clearly the import of the authorities cited by counsel. See Bailey v. The Mayor of New York, 3 Hill, 531; The San Francisco Gas Company v. The City of San Francisco, 9 Cal., 468; Dillon on Municipal Cor., § 39, note.
The powers of a public corporation are conferred by the legislature, and may be taken away by the same authority.
In the exercise of these powers, while lawfully possessed, the corporation acquires property. Here, then, is a right brought into existence — a right of property. The right originated in the exercise of lawful power. The power may be taken away, but the right, its offspring, continues to exist. Future rights cannot be acquired under the power, for it can
In the case before us, the city was clothed with power to levy the taxes in suit, and lawfully exercised that authority. The railroad company became bound to the city for the payment of the taxes. This liability, this debt, as we have seen, is property, and beyond legislative interference. The power under which the levy was made may be taken away by the legislature and other taxes may not again be levied thereunder, but the property right in the liability for the taxes already levied remains unimpaired.
3. The property of public corporations may be under the control of the legislature, so far as to direct the uses to which it shall be devoted. The corporation exists for governmental purposes, and the property is acquired to enable it to discharge its functions. • It is within the power of the legislature to direct the exorcise of corporate powers; to designate the objects for which and upon which such powers may be exercised; to authorize the expenditure of money therefor, and the like. Doubtless in the exercise of this constitutional authority, the legislature may control the expenditure of money by a city. But it must not be forgotten that a restriction is placed upon the exercise of this legislative power, namely: the corporate property can only be used for the public purposes for which the city exists. It cannot be exercised to destroy the property or divert it from public to private use. In the case before us, the property of the city, in the taxes, is destroyed for the benefit of the railroad company. The practical effect of •the legislation in question is to take money from the city treasury, which by law, is intended for public purposes, and pay it without any consideration received therefor by the city or the State, to the railroad company.
4. It is insisted that the statute in question simply provides for a commutation of taxes which is within legislative authority. We find it unnecessary to enter into an inquiry as to the exercise of this power, or the extent to which it may be carried. In our opinion the statute does not provide for commutation, but is intended absolutely to release the taxes in suit. To
III. It is next argued by counsel that the statute in question does not impair the obligation of a contract because the laws which establish municipal corporations are not contracts, and may be repealed and changed at the will of the legislature. The principle of law here stated may be admitted, but it is inapplicable to the case before us. The contract impaired by the statute in question is not a contract between the State and the city, embodied in the laws creating and conferring power upon the latter, but the obligation resting upon defendants to pay the taxes in suit. The case is this: The plaintiff is created by the State, and endowed with power to levy taxes. It becomes, by this legislation, an artificial person, capable of making contracts within the scope of its corporate powers, and enforcing its rights thereunder. In the lawful exercise of its powers it levies the taxes in suit. The law raises an implied contract, binding defendant to pay these taxes. This is the contract which is impaired.
It is true that the legislature may take away the powers conferred upon the city — may destroy its corporate existence, but cannot divest it of property or rights under contracts lawfully acquired. The State, by legislation, may decree the death of the municipality, and may become its executioner, but cannot seize and dispose of its estate at will. The authority of the legislature to take away or abridge municipal powers, by no means carries with it authority to destroy
The language of the provision must be understood to be mandatory, and not permissive. If it be regarded as permissive .only, the provision is nullified. Undoubtedly, without it the legislature could provide for the taxation of the property of corporations the same as that of individuals and justice would so demand. There is no restriction upon the legislative power forbidding uniform taxation or perventing its application to corporations. If, therefore, the language of the section be construed as pennissive, it grants no power and imposes no restriction upon the exercise of power, and is rendered meaningless.
The provision is not limited in effect to any particular class or kind of taxes, considered either as to the property upon which they are levied, or the purposes of their imposition, or the branch of the civil government for the support of which they are collected. The language is general and comprehensive. The word taxation applies to all assessments for public purposes which are called taxes, .and are authorized by law. Municipal taxes are within the language and spirit of the constitutional provision. They are levied for public purposes,
The conclusion just announced is supported by considerations of justice, which should always have controlling weight in construing laws, both constitutional and statutory, admitting of conflicting interpretations, in order to arrive at the true intentions of the law-makers, which, in such cases, must be presumed to accord with right. Under the statute involved in this-case and the doctrines njjon which it is attempted to be supported, the legislature exempts railroad property from municipal taxation, — relieving it by special enactment from taxes lawfully levied. The cities are charged with the duty of giving protection to the property and business of the railroad corporations found and transacted within their limits. In many of them, such property, both real and personal, of vast value, is situated. In some instances many acres of ground, almost in the heart of the cities, are covered with railroad cars and buildings, subject to conflagrations and other causes of destruction and loss. The business houses and dwellings of the people are endangered by proximity to such vast collections of combustible material. The city is charged with the protection of this property from destruction, and expensive machinery must be maintained for that purpose. The personal property of the railroad companies, as well as that carried by them, must be protected from pillage and larceny, and good order must be preserved in the throngs of people that are constantly found about their depots, entailing large outlays for the support of the police force of the cities. These expenses and resj)onsibilities are imposed upon the municipalities for the protection of the property and the rights of the corporations. Taxes levied by the cities upon railroad property, to be
We have not, in the preceding discussion, intended to convey the thought that taxes upon all property must be levied in the same manner, but that all property must be subjected to taxation for the same purpose. This remark will prevent a misunderstanding of the real point ruled.
But counsel for other railroad corporations, having cases pending in the courts which involve the validity'of taxes levied by other cities, in printed arguments submitted for our consideration, have , presented and elaborately argued the proposition.
2. It is not a question which involves the jurisdiction of this court, or of the District Court. Were it of that character it could be interposed in either court at any stage of the case. The District Court has original jurisdiction to entertain all actions for the enforcement of rights, the deprivation of which has its remedy in that way. The ordinary remedy to enforce the payment of money, which a party is under obligation to pay, is by action. The general proposition is true that if one party is indebted to, or in any manner bound to pay, another a sum of money, the latter may maintain an action against the former to recover it. The law may provide a special remedy in certain cases, which the plaintiff is required to pursue to the exclusion of all others; in these an action would not lie. But should an action be brought in such a ease and, without objection to the proceeding, be prosecuted to judgment, upon appeal to this court, the objection cannot1 be first heard here. The reason of the rule is this: The jurisdiction of the court is not taken away, but the party is required to seek under the circumstances, relief elsewhere. The circumstances or facts which require him to pursue the special remedy must be pleaded, or in a proper manner shown to the court entertaining the action, in order to defeat it.
Now the counsel urging the objection under consideration, admit that an action at law may be maintained to recover taxes lawfully levied when the manner of their collection is not otherwise provided for; that is, if there be no special proceedings prescribed by law, an action will lie. . They cite many authorities to support this proposition.
Our conclusion is that the objection under consideration, even were it well taken, or had it been made in the District Court, cannot avail him.
4. However, as the objection is elaborately discussed by counsel who are concerned in other cases wherein it is said to arrise, we may with propriety express our views upon the questions involved therein, which we will proceed, briefly, to do.
The ordinary remedy to enforce a liability for the payment of money, is by action. If a debt exist, if one is bound expressly or impliedly by agreement, obligation or legal tie, to pay another a sum of money, an action at law may be maintained thereon. In every case where the obligation is recognized by the law, the remedy is given. This remedy may be taken away and another given by statute. But the mere fact that a new and additional remedy is given will not destroy the common law right of action; either remedy may be pursued by the party seeking the enforcement of his rights. The intention of the legislature to take away the right of action must appear with sufficient certainty, and not by implication from the mere fact that another remedy is provided. We think these general doctrines cannot be denied, and are so familiar that the citation of authorities in their support will not be expected.
Mayor v. Howard, 6 Har. & Johns., 383; Dugan v. Mayor, 1 Gill & Johns., 499; Clemens v. Mayor, 16 Md., 208; Ryan v. Gallatin Co., 14 Ill., 83; Dunlap v. Gallatin Co., 15 Ill., 7; City of Oakland v. Whipple, 39 Cal., 112; Mayor v. McKee, 2 Yerg. 187; The People v. Seymour, 16 Cal., 334; The State v. Poulterer, 16 Cal., 514; Portland Dry Dock and Ins. Co. v. Trustees of Portland, 12 B. Monroe 77; The Dollar Savings Bank v. The U. S., 19 Wal., 277.
5. Of the numerous cases cited by counsel representing the railroad corporations, not parties to this suit, we esteem The City of Camden v. Allen, 2 Dutch, 398, and some of the Massachusetts cases, to be in point. The others hold that taxes do not bear interest unless it is so prescribed by statute, are not the subject of set off, cannot be taken on execution, and cannot be attached by garnishment-; that a tax collector can
YI. The very case under consideration illustrates the wisdom of the rule we adopt, and its necessity, to the end that speedy and exact justice be done. The collection of the taxes involved therein is resisted by the railroad company, on the ground that they have been discharged by an act of the legislature. This law is claimed by the city to be void, because it is in conflict with the constitution. Plere is a grave constitutional question, upon which the very merits of the case depend. If the law be unconstitutional, the taxes are collectible; if valid, they are discharged. Certainly the most zealous of the counsel for the railroad company cannot deny that this grave question is not free from doubt. But, according to their views, it can only be brought before the courts in the State in actions growing out of attempts of the tax collectors to enforce payment of the taxes by distress( and sale of personal property or by sale of real estate upon which the taxes are levied. If the statute in question be held constitutional, the collectors in such cases would be trespassers, and liable as such. If it be held invalid, the distress and sale by the collectors would be sustained, and titles originating thereunder would be upheld; thus, as it will be clearly seen, exposing the railroad company to great loss. In either case hardships and absolute injustice would result. But, by determining this grave constitutional question in an action to recover the taxes, these consequences are avoided. The rights of the parties are
We will not be understood to hold that, in ordinary cases, where no special circumstances exist, taxes may be collected by action. But simply that where the rights of the State, or of the sub-divisions of the State, levying taxes, or the rights and interests of the tax' payers, may be better enforced and protected through an action at law to recover taxes, in such a case that remedy may be presumed.
YII. We come to the consideration of the second branch of this case, which involves the liability of defendant for the taxes levied upon the rolling stock. A preliminary statement of a few facts not before mentioned is necessary. The defendant is a corporation, existing under the laws of the State of Illinois, and, during the year 1871, the period for which the taxes in suit were assessed, was operating a line of railroad from Dubuque to Sioux City, with its headquarters for the prosecution of this .business in the first named city. The engines and cars of defendant, denominated rolling stock, were used by the defendant in operating its line of railroad between the two cities above mentioned, and were duly assessed at the value of $300,000.
All of the Justices, in the case referred to, united in holding that the rolling stock of the railroad was not taxable by the city of Davenport, but they assigned different reasons in support of this conclusion. One of the Justices, (Lowe), thought that the rolling stock is a part of the road itself, and not taxable separately therefrom, but was of the further opinion, in which Oole, J., concurred, that the city was not clothed with power to tax the property, either real or personal, of railroads. Wright, Oii. J., and Dillon, J., held that the city could impose taxes upon the property of the railroad situated within its limits, but were of the opinion that the rolling stock was not taxable on the ground, as we understand their opinion, that it ■was not within the jurisdiction of the city for the purpose of taxation. They concede that it is taxable property, but was not “ within the city,” so that it was liable to city taxation.
Under the ruling of this court in Dunleith & Dubuque Bridge Co. v. The City of Dubuque, the property in question is taxable and subject to municipal taxation, if within the jurisdiction of the city for that purpose. We do not understand that Wright, Oii. J., and Dillon, J., in the case just referred to, express views as to the power of the city to tax the property in conflict with our later decision, but, on the contrary, in full accord with it. But, as a question of law, they held that the property was not taxable by the city, because, in contemplation of law, it was not within its limits. They concurred with the other members of the court in holding the property exempt from taxation on the ground that its situs
We have, then, the same conclusion reached by all the judges, while differing as to the reason and grounds upon wdiich it is based.
Two Justices hold the property to be taxable, two deny it. Two unite in holding, as a matter of law, that the property being transitory in its use, its situs was not in the city; another holds that its situs is not there because it is a part of the road itself; the other expresses no opinion, on these questions, but bases his conclusion on the absence of legislative authority to levy the tax. Now the question of law which controlled the decision of Wrxgx-it, Oi-i. J., and Dillon, J., ivas the doctrine advanced by them in regard to the situs of the property. Lowe, J., does not adopt their view as to this doctrine, but advances another whereby he announces still a different rule of law, namely, that the rolling stock, in contem
Now, we repeat that' the doctrine of the situs of the personal property announced by two members of the court,'the rule that the property was a part of the road maintained by another, and the further rule announced by the same Justice, and assented to by the fourth, all pointing toward the same result, concurred in producing the decision that the rolling stock was not taxable. But of these different principles of law, two Justices at most concur in assenting to any one of them. _ None of the opinions considered alone has the force of a decision of the court, because no one of them is concurred in by a majority of the Justices; taken collectively, they cannot be regarded as binding upon us in the character of a precedent.
Let ris inquire what is meant by the term, precedent, and what elements in a case is to be. followed under the rule stare decisis. It is not the judgment which the court pronounces upon the. rights of the parties involved in the suit. A judgment that A. recover of B. $1,000 is not to be cited as a precedent in a subsequent case to support the right of C. to recover the same sum from D., for the judgment is simply a conclusion reached by the application of rules of law to certain facts. We are to look farther in a case than to the judgment to find that which constitutes a precedent. It is found in the rules of law, which are the foundation of a judgment. These rules constitute the formula by which rights of parties are to be determined. When settled by adjudication, courts, under the doctrine stcwe decisis, are required to apply them-to subsequent cases. Upon the authority of the decision
It has always been held that a decision of a court, concurred in by less than a majority of the judges, has not the force of a precedent. When there is an equal division of opinion in this court, the decision of the court below stands affirmed. There must be a concurrence of a majority of the judges -upon the principles, rules of law, announced in the case, before they can be considered settled by a decision. If the court be equally divided or less than a majority concur in a rule, no one will claim that it has the force of the authority of the court.
Now what principle, what rule of law, what legal formula, which may be applied to the rights of 'the parties in the case before ns, was settled in The City of Davenport v. The M. & M. P. Co.? A. We reply, not one. At the risk of repetition, we will state succinctly the principles or rules of law announced in the different opinions:
1. Weight, Ch. J., and Dillon, J., hold that the situs of the rolling stock is not in the city. They, therefore, hold the city cannot levy taxes upon that property. They do not agree with Lowe and Cole, JJ., in the rules they announce.
2. Lowe, J., holds that the rolling stock is a part of the road, and that as there is no law authorizing the levy of taxes thereon, it is not taxable property. He does not agree with Weight, Cii. J., and Dillon, J"., in the rule announced by them.
3. Cole, J., concurs with Lowe, J., that the property is not taxable on the ground that there is no enactment to that effect. He makes no other point and announces concurrence with no other view taken by the other judges.
Now but two judges agree upon any one rule announced. That the property is taxable by the city this court has decided in Dunleith & Dubuque Bridge Co. v. The City of Dubuque,
■ We have been thus particular in examining the character and nature of the decision in question to determine whether its doctrines ought to have the force of res adjudioata. We confess an obligation to adhere to former decisions of this court, and we will not, except they appear flatly in opposition to legal principles, disregard them. In our opinion, it is quite as important to have the law firmly settled as wisely settled. Oscillating decisions of a court of last resort tend to disturb the tenure of property and the rights of the people, and weaken confidence in the courts. But it will hardly do to push the doctrine of stare decisis so far as to bind this court by the opinion of less than a majority of the occupants of its bench at the time. The rules of law announced by the different Justices of this court in The City of Davenport v. The M. & M. R. Co., in our opinion, cannot be regarded as a decision of the court having the force of a precedent.
It, therefore, becomes our duty to determine the questions in-the case before us involving the liability of the defendant for the taxes upon the rolling stock upon principle and decisions of other courts, for the question has not been determined here. Of course, we will give due weight and consideration to the reasoning found in the different opinions in Davenport v. The M. & M. R. Co. treating upon the question we have now to determine.
As we have before remarked, it is settled by a decision of this court, (Dunleith & Dubuque Bridge Co. v. Dubuque, supra), that the property in question is taxable under the laws of the State; if it be within the jurisdiction of the city it is subject to municipal taxation. In our opinion the statutory provision, above cited, determines that the property in question is to be listed in the city of Dubuque, and is there taxable. If it is property that may be assessed and taxed for State and county purposes in the township in which Dubuque is situated, and the officers or agents of defendant, whose duty it is to list the property, are taxable for property of like char
Now recurring, very briefly, to the character of the property, we remark that it consists of engines and cars used in operating the road throughout its whole length. By this we do not mean that the cars and engines are used continuously at one particular place on the road, but each one is used over the whole line’. The property is thus continually in a state of transition, and literally is in continual motion. It has, outside of Dubuque, no place of rest. The person whose duty it is to assess the property, is an inhabitant of the city of Dubuque, for the head quarters of defendant for the management and control of the -rolling stock are there. The property, in contemplation of law, is in his possession; as a matter of fact it is under his control. When elsewhere than -in the city of Dubuque, it is in motion; if not absolutely so, it is only waiting for an opportunity or occasion to move. These being the facts, it appears to us that the proper manager of defendant’s affairs is required to list the property in Dubuque.
But the doctrine is not without force and application to support the conclusion that the property in question is subject to assessment and taxation by the city of Dubuque. The officer or agent who has control of the property, stands in the place of the owner, and its situs for all purposes of taxation, unless otherwise prescribed, is his place of business. Supervisors of Tazewell Co. v. Davenport, 40 Ill., 197; Sangamon & Morgan R. R. Co. v. County of Morgan, 14 Ill., 163; British Commercial Life Ins. Co. v. Commissioner of Taxes, 31 N. Y., 32. The transitory character of the property renders
A resident of the State, owning property which is used in different counties or localities, without its having in any one an actual situs, would be taxed thereon in the place of business at which he managed such property. But in case a resident owns personal property actually situated in a county different from his place of residence, he is taxed in the county where the property is found. Such is the effect of Rev., § 717. It contemplates that the property, in order to be taxed out of the county of his residence, shall be in a permanent manner used where it is assessed.
The keeper of a livery stable or the proprietor of a line of stages may have property that is transitory, actually in motion at all times when not necessarily at rest, as demanded by the nature of his animals, or for repairs of his vehicles. The situs of such property, for the purpose of taxation, is the place of business of the owner. The rolling stock of defendant is used in the same way, and is governed by the same rules. The manager or agent of defendant for the State, being required to list the property, must do so as though it were his own. His place of business is Dubuque. There his property, were it used in a like manner, would be taxable, and there must defendant’s be listed and taxed.
■ These views, we think, are supported by the following cases: Hunter v. Supervisors, 33 Iowa, 376; The Board of Supervisors v. Davenport, 40 Ill., 197; Sangamon & Morgan R. R. Co. v. The County of Morgan, et al., 14 Ill., 163; St. Louis v. Wiggins Ferry Co., 40 Mo., 582; British Com. Life Ins. Co. v. Comm’rs of Taxes, 31 N. Y., 32; Sacramento v. California Stage Co., 12 Cal., 134; People v. Niles, 35 Cal., 282; Conroe v. Nat. Protection Ins. Co., 10 How. Pr., 403; Hubbard v. Nat. Protection Ins. Co., 11 Id., 149; State v. Haight, 1 Vroom, 428; Thorn v. Cen. R. R. Co., 2 Dutcher, 125.
XII. The conclusion of Dilt.on, J., and Weight, On. J., is based upon t-lie ground that if the property is held to be taxable by the city wherein the principal place of business of the corporation is situated, it may be taxed likewise in every other town and city on the line of the road. This result they reach upon the authority of Baldwin v. The M. & M. R. R. Co., 5 Iowa, 518, and Richardson v. The B. & M. R. Co., 8 Iowa, 260, which they cite as holding that the residence of the corporation is all along the road — in every place through which it passes. It is a sufficient answer to this equally inadmissible conclusion to say, that the cases-cited in its support relate to the place of .bringing suits against corporations, and construe statutes upon that subject. They are not upon the subject of taxation, nor do they involve any question relating thereto.
The argument, that if the corporation may be taxed in the
It is conceded by all that justice demands all property of the State, not exempt by law, shall be subject to taxation; that no person or class of persons, whether natural or artificial, should escape the burdens of supporting the government. Corporations should have no greater exemptions in the matter of taxation than are extended to every citizen of the State. That such is the spirit and intention of the law we have no doubt. Indeed, the language of the supreme law of the State on this subject is as follows: “ The property of all corporations for pecuniary profit shall be subject to taxation, the same as that of individuals.” Constitution, Art. 8, § 2. In our opinion, the spirit of this constitutional provision is repeated in the statutes to which we have referred, and we think it was the intention of the legislature that all personal property of railroad corporations, including rolling stock, should be taxed the samé as property of like character owned by the citizens of the State.
Our views, as we have expressed them, carry out this spirit and intention which is plainly discovered in the statutes themselves, and, as they are in harmony with right and justice, we are fully satisfied with the conclusions to which they lead us.
The judgment of the court in disallowing the tax to the amount of $50 upon the depot building is correct, as the same property is covered by an assessment under another description.
The judgment of the District Court will be affirmed on defendant’s appeal, and reversed on the appeal of plaintiff.
Affirmed on Defendant’s Appeal.
Reversed on Plaintiff’s Appeal.
Dillon’s Mun. Cor., § 653; McInerny v. Reed, 23 Iowa, 413; Merriam v. Moody’s Ex'r, 25 Iowa, 169; Dugan v. Baltimore, 1 Gill. & Johns., 499; The Mayor v. Baltimore, 6 Har. & Johns., 383; (Gordon v. Baltimore, 5 Gill., 236; Eschbackv. Pitts, 6 Md., 71; The Mayor etc. v. Proprietors etc., 7 Md., 517; Litchfield v. Vernon, 41 N. Y., 134; St. Louis v. Clemens, 36 Mo., 473; St. Louis v. De Norse et al., 44 Mo., 139; Bigelow v. The C. & C. Turnpike Co., 7 Mass. 203; Town of Lebanon v. Olcott, 1 N. H., 340.
Shaw v. Pecket, 26 Ver., 482; Flournoy v. The City of Jeffersonville, 17 Inch, 169; Cooper et al. v. The City of Savannah, 4 Geo., 73; Pierce v. The City of Boston, 3 Met., 520; Lane Co. v. Oregon, 7 Wal., 71; Ruddock v. Gordon, Quincy's Mass. Rep., 58; The Andover & M. Turnpike Corporation v. Gould, 6 Mass., 40; Carpo v. Stetson. 8 Met., 393; Packard v. Tisdale, 50 Me., 376; The Union Tow Boat Co. v. Bordelon, 7 La., An., 194; Kimble v. The White Water Canal Co., 1 Cart., Ind., 285; The N. A. & S. R. Co. v. Connelly, 7 Port., Ind., 35; The Indiana Cen. R. Co. v. Oakes et al., 20 Ind., 9; Mason v. K. & P. R. Co., 31 Me., 217; Stowell v. Flagg, 11 Mass., 364; Stevens v. Middlesex Canal, 12 Mass., 466; Aldrich v. The Cheshire R. Co., 1 Foster (21 N. H.), 359; Colcough v. The N. & N. W. R. Co., 2 Head., 175; Brown v. Beatty, 34 Miss., 229; Egerton v. Third Municipality of N. O., 1 La., An., 435; Lowber v. The Mayor, etc., 7 Abb., Pr., 248; Perry v. Washburn, 20 Cal., 319.
Concurrence Opinion
concurs in the conclusions reached in the foregoing opinion. Upon the proposition, however, that the city has a
Concurrence Opinion
I. I concur in the conclusion of the foregoing opinion holding the 9th section of chapter 26, Laws of the Fourteenth General Assembly, to be unconstitutional and void. I base my concurrence upon the single ground that that section, in attempting to release railroad corporations from the payment of city taxes levied upon their property alike with that of individuals within the city limits,, is in plain conflict with the second section of Article eight of the State Constitution, which declares that “ the property of all corporations for pecuniary profit shall be subject to taxation the same as that of individuals.” My views at more length are stated in The City of Davenport v. The Chicago, Rock Island & Pacific R. Co, 38 Iowa, 633. I do not deem it proper to repeat them here. Holding the act invalid on this
While Mr. Justice Cole denied the power.to levy any tax whatever upon any of the property of the railroad company, the other members of the court agreed that no authority resided in the city to tax the rolling stock of the company. In the Dubuque & Sioux City Railroad Company v. The City of Dubuque, supra, the court, in the opinion per Cole, J., say: “As to the right of the city to levy taxes upon the rolling stock of the plaintiff, this court is a unit, in its agreement with the court below, for the reasons stated in the case of The City of Davenport v. Mississippi da Missouri Railroad Company, and the judgment of the District Court thereon is therefore affirmed.” The court below held that the City of Dubuque had no power to levy taxes for municipal purposes, upon the rolling stock of the plaintiff which had its principal place of business within the city.
Believing that these cases fairly decide this question as to the power of the plaintiff to tax the rolling stock of the defendant, and since, as an original question, it would not be free from doubt, I am not disposed to overrule them. Following the doctrine there decided, I hold that the plaintiff had no power to levy taxes upon the rolling stock of the defendant, and therefore is not entitled to recover them in this action. In this conclusion Mr. Justice Cole concurs.
III. In regard to the right of the plaintiff to maintain this action for the collection of the taxes to which it is entitled, I express no opinion. The question was not raised in any manner in the court belowr, and it is not a jurisdictional question that may be raised for the first time in argument in this court. For a further expression of my views on this point I refer to The City of Davenport v. The Chicago, Rock Island & Pacific Railroad Company, supra.
Dissenting Opinion
The real merits of this controversy, as well as the just and legal force of the questions involved in it, and discussed in the several opinions, will be better and more truly and fully apj>rehended by a statement of a few
These two acts were the only laws ever enacted in this State for the taxation of railroad property, until the enactment of Sec. 16, Ch. 173 of Laws of 1862, approved April, 8, 1862, and which took effect by publication, April 25, 1862. This act provided for a tax of one per cent, on the gross receipts of each railroad company for each year; that the report of such receipts should be made under oath to the State treasurer, on or before the first day of February of each year, and the taxes should be paid to the State treasurer on or before the fifteenth day of February, after which time they became delinquent, and subject to penalties and interest; that the State treasurer should retain the taxes so paid, and apportion one-half thereof to the several counties through which the road runs, according to the number of miles in each. The section concludes as follows: “ The tax herein provided for shall be in lieu of all taxes for any and all purposes on the road-bed, track, rolling stock, and necessary buildings for
This act continued in force till the enactment of Sec. 1, Ch. 196, of Laws of 1868, which took effect, April 28, 1868; and this latter act was the same in substance as the one it amended —it simply required the company to state the number of miles of road in each county, and provided for ascertaining the gross receipts, in case the company failed to report; but it required or levied the same tax, and concluded with the same paragraph as above quoted.
The only other act, respecting the taxation of railroad property, ever passed by the legislature, prior to the one in controversy in this case, was Ch. 106 of Laws of 1870. The first section provides for a report by each railroad, annually, of its gross receipts. The second, for a levy by the state treasurer of a tax on such gross receipts, per mile, of one per cent, on the first $3,00", two per cent, on the next $3,000', and three per cent, on all over $6,000. The third, that the treasurer may collect the tax, without process, by seizing and selling property. The fourth apj>ortions the tax, one-fifth to the State, and four-fifths to the counties in proportion to the number of miles of road in each. The fifth provides for ascertaining the gross receipts in case the companies fail to report them, and a penalty for such failure, and concludes with the same paragraph as above quoted. The sixth refers to Mississippi and Missouri River bridges, and the seventh repeals all acts inconsistent with it.
After this act was passed, and in October 1871, in the case, of The D. & D. Bridge Co., v. The City of Dubuque, 32 Iowa, 427, it was held by a majority of this court, (the writer hereof dissenting), that the provision contained in each of the acts and quoted above, to-wit: “The tax herein provided for shall be in lieu of all taxes for any and all purposes on the road bed, track, rolling stock and necessary buildings for operating the road,” did not mean “in lieu of all taxes for any cmd all pu/rqposesf but only in lieu of all taxes for State
The legislature which met in January, 1872, and shortly after this decision was made and announced, adopted an act providing an entirely different method for the assessment of this property and the taxation of railroad companies. Oh. 26, Laws 1872. And for the manifest purpose of correcting the error of language used by the legislature, or the erroneous construction' placed by a majority of this court upon the language of the previous acts above quoted, and of effectuating the (to them) known legislative intent in enacting and re-enacting the same, they provided as follows: “ Sec. 9. Every railroad company which shall have paid all taxes on gross earnings provided for by chapter 106 of the Acts of the Thirteenth General Assembly, (Laws of 1870) shall be released from the payment of all other taxes which may have been levied upon the road bed, right of way, track, rolling stock, and necessary buildings for operating their road, and no taxes for prior years, for State, county, municipal, or for any other purpose for which any tax can be levied under the laws of the State up to the first of January last, shall be collected from any such railroad company on such property.” And, as if to make assurance doubly sure, avoid any claim to the taxes under prior laws and remove any doubt respecting their repeal by implication, the legislature expressly repealed such prior laws by enacting: — “Sec. 13. All laws and parts of laws, inconsistent with the provisions of this act, are hereby repealed.”
Under these facts and circumstances this action was brought, December 24, 1872, as an ordinary action at law, to recover the municipal taxes assessed by the City of Dubuque in 1871, upon the road bed, right of way, track, rolling stock, buildings and supplies for operating the road. It is conceded that the plaintiff cannot recover, if the act, last above quo'ted, is valid. The plaintiffs’ counsel, therefore, claim and insist that such
As to private corporations the rule has been different. In the great leading case of The Trustees of Dartmouth College v.
If a municipal corporation may, under any circumstances, as between itself (and not as trustee) and the sovereign power of the State, acquire any vested rights which the latter cannot rightfully control, it certainly cannot have such right in an uncollected tax, levied under a general law, and for general public purposes. It is the sovereign will which authorizes the levy; the municipal corporation is but the creature and agent to collect; and it needs no argument to prove that the agent and creature can acquire no rights in antagonism to those of the principal and creator. It is enough, therefore, that the sovereign legislature has said to the agent municipality, that the taxes are released, and the agent shall not collect.
But, if we give to the language of the section the construction that it is mandatory, and hold this statute to be unconstitutional, then we must hold all our revenue laws unconstitutional which have been passed since the new constitution was adopted; for none of them have provided for the taxation of the property of corporations the same as that of individuals. And this we cannot do, without overruling many of the previous decisions of this court. In Faxton v. McCosh, 12 Iowa, 529, § 462 of the Code of 1851, and § 7, Chapt. 152, Laws of 1858, (quoted supra) were directly assailed as being unconstitutional; but this court held, affirming the judgment below, that those statutes were constitutional and valid. In the case of The City of Davenport v. The M. & M. R. Co., 12 Iowa, 539, it was also claimed by counsel that these very sections were unconstitutional because of their conflict with this particular section of the • constitution under review, section 2, Art. 8, but this court held otherwise. In Tallman v. Butler County, 12 Iowa, 531, the same sections of the laws and the constitution were again under review, and they were again held constitutional; and in that case it was held, also, that the lands granted to the railroad company were not liable to taxation as lands; that they could only be taxed through the shares of the stockholders, and, says Weight, J., on page 534: “Taxation is an attribute of sovereighty. The power to tax implies a corresponding power to apportion such tax as the legislature shall deem proper. If it is unwisely (not unconstitutionally) exercised, the remedy is with the legislature. No property can be taxed, however, until the law-making power authorizes and requires it to be done, and if it be done in one or in a particular way, that alone can be pursued. It
But the act of 1872 actually and expressly repeals parts of the prior laws, including that under which the tax in controversy was levied. And the previous decisions of this court cited, show that a tax cannot be levied or collected until the law-making power authorizes it, and in the way it is authorized. The legislature have repealed the law authorizing the collection of this tax, and it cannot therefore be collected. But, it is said, the law repealing it leaves the law in force unconstitutional. Yery well; but that does not affect the repeal, nor enable the court to re-enaet the law repealed. If the law or statute, as it is left, after the repeal of some of its sections or parts, is unconstitutional, the coupt may so declare it, and it will be inoperative. But, surely, the court cannot re-instate or re-enact the parts repealed so as to patch up the statute and make it constitutional. The right of the legislature to change, modify or repeal the powers conferred upon a municipality, is not questioned, even by the counsel for the city.
Concurrence Opinion
concurs in all conclusions except as to the liability of the rolling stock to taxation. His mind is brought to a concurrence upon the points of the argument by considerations stated in a separate opinion.
Dissenting Opinion
dissents in toto to the foregoing opinion. ITis views are fully expressed by himself.
The judgment upon defendant’s appeal is affirmed upon the concurrence of a majority of the court, and affirmed upon plaintiff’s appeal by reason of an equal division in the opinions of the judges — Beck and Day, JL, holding that on plaintiff’s appeal the judgment should be reversed, while Miller, Ch. J., and Cole, J., hold it should be -affirmed.
Affirmed.
Not:e. — The arguments of counsel in The City of Davenport v. The Chicago, Rock Island & Pacific R. Co., 38 Iowa, 633, upon points discussed in the foregoing opinion, were considered before the decision in this case. Messrs. D. Rorer, Cook, Rickman & Bruning, T. F. Witkrow and Edmonds & Ransom submitted arguments for defendant in tkat case, and J. if. Rogers for plaintiff.
