Salter v. City of Burlington

42 Iowa 531 | Iowa | 1876

Seevers, Ch. J.

1. TAXATION: homestead: must be listd separately One ground of demurrer is that it is not “alleged the homestead was listed separately as a homestead which was necessary in order to exclude its liahility for other taxes than such as accrued thereon.” Section 766, Revision, among other things provides, “the homestead is liable to be sold for no tax save that which is due on itself exclusively.” In 1862, Acts of the Ninth General Assembly, Chap. 173, Sec. 9, all that part of section 766 relating to the homestead was stricken out and the following enacted in lieu thereof: “ In all cases where the homestead is listed separately as a homestead, it shall be liable only for the taxes thereon.” And Said section 766 as thus changed now constitutes Sec. 876 of'the Code. In Penn v. Clemons, 19 Iowa, 377, the taxes were levied and had become delinquent before the passage of the act of 1862, which it was held did not apply. This case was followed in Stewart v. Corbin, 25 Iowa, 145. "Wright, J., however took occasion to say: “Following the doctrine there (in Penn v. Clemons) announced (as I do with no little doubt, as applied to this question, and yet preferring in matters relating to real property to stand by decisions for the sake of certainty if nothing more), it follows that this sale is void.” The question now before the court is presented for the first time, neither of the cases cited being like this; the essential difference being, that the assessment levy and sale all transpired subsequent to the taking effect of the act of 1862, which materially changes the previous law. Before 1862 the homestead “ could only be sold for taxes due onitself exclusively.” This is something very different from, “in all cases where the homestead is listed separately as a homestead it shall be liable only for the taxes thereon.” To exempt the homestead from liability for taxes on other property, it must be listed separately as a homestead; this is the plain and exjdicit language and no refined reasoning can avoid the meaning or effect of the provision. When the act of 1862 took effect and the assessment, levy and sale were made, the .law was that taxes due from any person upon personal property should be a lien upon any real estate, owned by such person, or to which he may acquire title. Rev., 759.

It is however urged that the law of 1862 impairs the obligation of a contract, because as Gay acquired the homestead before that law was passed, and the law being, when acquired, that it could only be sold for taxes accruing thereon this could not be subsequently changed. In this view we do not concur. The cases cited are not in point. They all go only to the extent when the legislature in express terms contracts that certain property shall be exempt from taxation upon a consideration deemed sufficient, such contract cannot be abrogated by a subsequent legislature. There is not even the semblance of a contract here.

2_._. ■-• ■ It is also urged that “ listed separately as a homestead ” means only separately from other real estate, and as Gay had no other real estate, the law is meaningless in this case. By listing separately as a homestead amounts to claiming it as a homestead for-the purposes of taxation, and the owner thereby elects that it shall not be sold for any taxes other than those accruing thereon. This is his personal privilege. To exempt it, the property must be listed as a homestead.

Akfirmed.