23 Iowa 410 | Iowa | 1867
Section 20 has become misplaced, and should follow section 25 or be read in connection with it. By these sections the city is authorized “ to cause to be opened, paved or improved any street, on petition of not less than two-thirds of the number of owners bounding on such street, and to levy and collect a special tom for defraying the costs and expenses of the same by <m egual assessment on the lots bounding and abutlmg as aforesaid” (§ 25), “ and such tax shall be a lien upon the real estate upon which it may be assessed from the time of the filing of such petition until it shall be fully paid or satisfied (§ 20).
Under this grant of power, the city passed an ordinance (No. 32, p. 122 of printed ordinances) providing the mode in which the special tax for street improvement authorized by section 25 of the charter, should be assessed, levied and collected;
One year from the date of sale is given to the owner to redeem, by paying the amount for which the property sold, with costs and' twenty-five per cent additional. It is admitted by the petition and by the plaintiff’s counsel, in argument, that this ordinance is in excess of the charter-power so far as it authorizes a sale and conveyance of the property by the city. See on this subject Ham v. Miller, 20 Iowa, 450 (in point); Blackwell on Tax T. ch. 31, p. 448 (ed. 1864). It is therefore conceded that the city had no power to collect the special tax or assessment by a sale of the property.
Is the power conferred nugatory, or rendered ineffective
We refer to this simply to show that such a course has been sanctioned by the general assembly, and not to affirm that this act has any direct application to the case at bar. The grant of the power “ to collect ” carries with it “ all the usual, ordinary and necessary means for the exercise of the power.” Blackwell, ch. 22, § 18; Id. ch. 31, p. 448 (ed. 1864). And see The Mayor, etc., v. Colgate, 2 Kernan (N. Y.) 140.
It is a “ special tax ” “ assessed ” by the city upon the lot. There is an inherent or common law power to enforce a debt proper, as for money lent or services rendered. But there is no such power to enforce the collection of a tax or assessment; there must be a statute.
"Without statute, the city cannot levy the special tax. Without statute, it cannot collect the amount. The defendant, if bound to pay, is bound, by virtue of the power given to the city, “ to levy and collect.”
The amount is assessed by virtue of the sovereign power in the State to levy taxes and assessments, which power is, by the charter, delegated to the municipality. An amount thus assessed or imposed cannot be said to be an ordinary debt.
Again, suppose the city had made a number of assessments for sidewalks or other local improvements, could it, before judgment, barter and sell these assessments by express contract, assign its right to collect, and, by virtue of such sale and assignment, invest the assignee with the power to sue and collect in his own name? To allow this to be done, would be to open a most dangerous door, leading, on the one hand, to frauds against the city, and, on the other, to oppression of the citizen or property owner.
Affirmed.