Crawford County v. Laub

110 Iowa 355 | Iowa | 1900

Ladd, J.

That the tax levied against a lot on which a liquor saloon is operated under the mulct law is a debt for which the proprietor and his sureties are personally liable in a suit on his bond was held in Marshall County v. Knoll, 102 Iowa, 573. No other remedy on the bond existed, and the right to maintain an action thereon was necessarily implied. See McInerny v. Reed, 23 Iowa, 412; Findley v. Taylor, 97 Iowa, 420; State v. Tittman, 103 Mo. 553 (15 S. W. Pep. 936)_. Here the proprietor is not a party, and the only remedy sought is against the real estate. Section 1 of chapter 62 of the Acts of the Twenty-fifth General Assembly provided for the assessment against ■ the person 'engaged in the liquor traffic, and also “upon any real prop*erty and the owner thereof, within or whereon intoxicating liquors are sold, or kept with intent to sell in this state, a tax of six hundred dollars per annum. All such taxes shall be a perpetual lien upon all property, both personal and real, used in or connected with the business.” Section 12 requires the county treasurer on the first Mondays in June and December to offer “at public sale at his office, all .lands, town lots or other real property on which taxes for the sale of intoxicating liquors have become a lien.” By section 13, “all the provisions of law now or hereafter in force for the assessment, levy and collection of taxes shall apply to and govern the taxes provided for by this act, except, as herein otherwise provided.” It is sufficient here to say that, under the general law relating to the collection of taxes, upon sale of land a certificate of sale is executed by the,treasurer to. the purchaser, and, unless redemption- is made in the meantime, on proper notice, a deed will be issued in three years-. The remedy-is thus provided in detail, and we think it. is exclusive. This court has never determined whether ordinary taxes may be collected in an action at law. On that proposition but two of the four judges concurred in City of Burlington v. Burlington & M. R. Co., 41 Iowa, 139, and City of Dubuque v. Illinois Cent. R. Co., 39 Iowa, 56. The point was not involved in Shaw v. Orr, 30 Iowa, 360, nor decided in Findley v. Taylor, 97 Iowa, 420. Nor may we now determine that question, though it can be '.said the decided weight of authority is that the particular remedy provided by statute is exclusive. Water-Supply Co. v. Bell, 20 Colo. Sup. 175 (36 Pac. Rep. 1102); City of Nebraska City v. Nebraska City Hydraulic Gaslight & Coke Co., 9 Neb. 339 (2 N. W. Rep. 872); City of Carondelet v. Picot, 38 Mo. 125; Board of Com’rs of Stafford County v. First Nat. Bank of Stafford, 48 Kan. Sup. 561 (30 Pac. Rep. 22); Baldwin v. Hewett, 88 Ky. 673 (11 S. W. Rep. 803); Pierce County v. Merrill, 19 Wash. 175 (52 Pac. Rep. 854). See authorities collected in 25 Am. & Eng. Enc. Law, 312 et seq.; Cooley Taxation (2d ed.) 16. See, also, Black, Tax Titles, section 45; Blackwell, Tax Titles, isection 335. The same remedy is provided for enforcing the collection of the mulct tax against land as the ordinary tax. The different steps to be taken are a.s clearly defined by the revenue law as the mode under which a judgment lien may be enforced and collected is pointed out by ¡3ta,tute. In providing a specific remedy for the enforcement ©f a tax lien, applicable to m> other, the legislative intent ¿that another’ may not be resorted to is> manifest. See Sutherland Statutory Construction," section 399; Hodges v. Tama County, 91 Iowa, 578; Luce v. Fensler, 85 Iowa, 602; Cole v. City of Muscatine, 14 Iowa, 296. It must be borne &n mind that the exercise of the power of taxation is legislative, and not judicial, in character; and that, where an adequate remedy is provided by the general assembly without resort to the courts, none by court procedure should be Smplied. In Corbin v. Young, 24 Kan. 201, the court, Speaking through Brewer, J., said: “It is undoubtedly true that by statute taxes are made a lien, and that equity, when lit takes jurisdiction, enforces a lien by foreclosure and sale. But has equity any jurisdiction in: this case ? Can the holder of a tax lien foreclose it as he would a mortgage lien % We ^think not. The statute has prescribed the proceedings in reference to taxes, tax sales, redemptions, and also to secure $he rights of tax purchasers; and whenever these proceedings apply a party may not invoke the general jurisdiction and proceedings of the courts.” People v. Biggins, 96 Ill. 481; Board of Education v. Old Dominion, I. M. & M. Co. 18 W. Va. 441; Water-Supply Co. v. Bell, supra. The appellant is mistaken in asserting that a more adequate remedy would be afforded by an. action in equity. As tbe lien exists, no suit is essential to its establishment, and title may be as effectually devested by the sale of the treasurer as by /that of the sheriff. Possibly the buyers might the more xeadily bid in the one case than in the other, but this does not involve the adequacy of the remedy, but the adequacy of ¡the results of the remedy. As said im Thompson v. Allen County, 115 U. S. 550 (6 Sup. Ct. Rep 140, 29 L. Ed. 472) : “By 'inadequacy of the remedy at law’ is’here meant, not that it fails to produce the money, — that is a very usual result in the use of all remediés, — but that, in its nature or character, it is not fitted to be the end in view.” As tersely put in Rees v. City of Watertown, 19 Wall. 107 (22 L. Ed. 72): “The remedy is, in law and in theory, adequate. The difficulty is in its execution.” See People v. Biggins, supra, and Board of Education v. Old Dominion, I. M. & M. Co., supra. — Affirmed.

Granger, C. J., not sitting.