Ham v. Miller, 20 Iowa 450

Ham v. Miller

20 Iowa 450 | Iowa | 1866

Wright, J.

x. buque:tax » sale.Du Appellant insists that as the treasurer’s deed was executed pursuant to the ordinances and authoritv conferred by the citv council, it had the same J J v effect as the deeds of county treasurers; and to sustain this position he relies upon the act of March 22, 1858. Rev., § 1144. He further maintains that this act confers upon the purchaser at a city tax sale all the rights and remedies secured by the general law to the purchaser at other tax sales, or sales made by county officers.

These positions naturally lead to the first and material inquiry, whether the city council had any power to authorize the sale and conveyance of real estate for the non-payment of city taxes. For to give the deed the same effect as that made by the county treasurer, it must have been executed pursuant to the power conferred by the city charter. When the deed by the city officer is properly made, or made “ by virtue of the laws and ordinances of the corporation,” then it has the same “ effect as the county treasurer’s deed under sales made by him,” and the purchaser may pursue the same mode for making the sale effective. And the case of Sweet v. Billings, 14 Iowa, 385, decides nothing more than this. There is nothing in that case indicating that a sale and conveyance by the officers of a municipal corporation under a tax sale, would be valid without reference to the question of power. We are, therefore, brought back to the first inquiry, whether, under the charter of the city of Dubuque, there is any power to sell and convey real estate for the non-payment of taxes, and we have no hesitation in holding that the power is not conferred.

*453ss. tax utatatfconWe need not say that this power, sovereign in its nature, must not depend for its existence upon mere inference, but must always be created by express grant. Blackw., 10-30, and authorities there cited. To create or confer the power is one thing, and to regulate its exercise is quite another, The act of March 22, 1858, specifies the purchaser’s rights and the mode of making the sale effective, or foreclosing the redemption, in cases where the real estate is sold by virtue of the laws and ordinances of the corporation. In most of the city charters the power to thus sell and convey is given in express words. To all such this act would apply; but not to a corporation, like that of Dubuque, possessing no such power.

2-cW?ourm_ poration. The only provisions of the charter under which the power could by possibility be claimed, are clauses 23 and 24 of § 7, city charter, Í858; approved January 28, 1857. These provide that the city council ' L ° shall have power to collect taxes to defray the current expenditures, and pay the debts of the city, and to provide for the assessment of all taxable property in said city, with reference to taxation for city purposes. There is not even a provision giving the power to pass ordinances to carry into effect the granted powers. This power would be presumed, perhaps, without the aid of an express grant. But the power to “ provide for the assessment of all taxable property,” or “ to collect taxes,” does not include that of selling and conveying in case of non-payment.. This power, so high, delicate and important in its nature and character, must not rest upon an implication so remote — nor depend for the mode and manner of its exercise upon the mere will or discretion of the city council. And especially is this so where the charter, as in this instance, fails to leave this or any kindred matter to such discretion or will.

Affirmed.