Chi., R. I. & P. Ry. Co. v. Murphy

• Decision Date: 26 May 1898
• Citation: 75 N.W. 680,106 Iowa 43
• Court: Iowa Supreme Court
• Parties: CHICAGO, R. I. & P. RY. CO. v. MURPHY, COUNTY TREASURER.

106 Iowa 43

75 N.W. 680

CHICAGO, R. I. & P. RY. CO.

v.MURPHY, COUNTY TREASURER.

Supreme Court of Iowa.

May 26, 1898.

Appeal from district court, Polk county; C. P. Holmes, Judge.

Action in equity to restrain the collection of a road tax levied upon property of the plaintiff. A demurrer to the petition was overruled, and, the defendant refusing to plead further, a decree was rendered in favor of the plaintiff for the relief demanded. The defendant appeals. Reversed.W. G. Harvison, C. A. Bishop, and C. C. Nourse, for appellant.

Carroll Wright, for appellee.

ROBINSON, J.

The material facts shown by the pleadings are substantially as follows:The defendant is the treasurer of Polk county, and the plaintiff owns several lines of railway in that county, parts of which are within the city of Des Moines, and other parts are within certain incorporated towns. The assessed value of the portions of the plaintiff's railways within the city and towns referred to, as fixed by the executive council for the purposes of taxation, is $231,452. In the year 1895 the board of supervisors of Polk county levied a tax of 1 mill on the taxable property within the county for county road purposes; and that levy was carried into the tax lists of the county against the property of the plaintiff, including that within the city of Des Moines, and other towns of the county, and also against a lot of land within the city of Des Moines; and that tax is the one in controversy. The plaintiff has paid all the taxes levied upon its property, excepting the tax in controversy, and seeks to enjoin the collection of that, and to have it declared void and canceled, on the alleged ground that the board of supervisors had no authority to levy such a tax on any property located within the limits of a city or incorporated town. Whether such authority existed at the time the levy was made is the question we are required to determine.

1. The authority to levy the tax is claimed by virtue of section 1 of chapter 200 of the Acts of the Twentieth General Assembly, which provided “that the board of supervisors of each county may at the time of levying taxes for other purposes, levy a tax of not more than one mill on the dollar of the assessed value of the taxable property in their county, which tax shall be collected at the same time and in the same manner as other taxes are collected and shall be known as the county road fund, and shall be paid out only on the order of the board of supervisors for work done on the highways of the county, in such places as the board shall determine. * * *” It is said in behalf of the appellee that a tax, to be valid, must inure to the benefit of the district or locality taxed, and there must be authority to expend the tax, or some portion thereof, within such district. It is further said that the board of supervisors of a county lacked the power, under the statute cited, to levy a tax on the property within a city or incorporated town for the benefit of the county road fund, for the reason that such fund can be paid out only on the order of the board, and it has no authority to expend any money in grading, repairing, or otherwise improving any street in a city or incorporated town. It was held in Gallaher v. Head, 72 Iowa, 173, 33 N. W. 620, that counties do not have the right to establish highways within cities and incorporated towns, for the reason that the latter have the right to establish, change, and improve streets within their limits, and to regulate their use, and that such power is inconsistent with a right in the county to establish and improve highways therein, and must be regarded as exclusive. In the case of McCullom v. Black Hawk Co., 21 Iowa, 409, the liability of a county for a defective bridge within a city was considered; and it was held that although a county is liable in certain cases for defective bridges in highways of the county, and although the bridge there in controversy had been erected by the county upon a highway before the city was incorporated, yet, as it was afterwards included within that city, the liability of the county ended, and that of the city commenced, when the organization of the latter was completed. The decision was based largely upon the conclusion of the court that the city had jurisdiction of the streets and bridges therein, and that they could not be subject to the control of two independent sets of officers. In Clark v. Town of Epworth, 56 Iowa, 462, 9 N. W. 359, it was held that the defendant was liable for a ditch which was dug by the road supervisor of the township in which the town was situated, and negligently left without barrier or signal to indicate danger. It was said that the statute which authorized township trustees to divide their townships into such number of highway districts as they might deem necessary for the public good was broad enough to confer upon the trustees unrestricted control over the establishment of highway districts in their townships; yet it was held that the power granted to cities and incorporated towns over their streets, including the power to grade and keep them in repair, was inconsistent with any right on the part of the township officers to exercise control of the streets. That case was based in part upon Marks v. Woodbury Co., 47 Iowa, 452, on which the appellee especially relies. That case involved the validity of a road tax levied by the trustees of the township of Sioux City upon real estate within that township, which was also within the city of Sioux City, and the interpretation of that portion of section 969 of the Code of 1873 relating to the powers of township trustees to levy road taxes,...