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

• Decision Date: 10 April 1931
• Docket Number: No. 40386.,40386.
• Citation: 211 Iowa 1334,236 N.W. 24
• Parties: CHICAGO, R. I. & P. RY. CO. v. STREEPY ET AL. CHICAGO, B. & Q. R. CO. v. BOARD OF SUP'RS, APPANOOSE COUNTY, ET AL.
• Court: Iowa Supreme Court

211 Iowa 1334

236 N.W. 24

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

v.STREEPY ET AL.

CHICAGO, B. & Q. R. CO.

v.BOARD OF SUP'RS, APPANOOSE COUNTY, ET AL.

No. 40386.

Supreme Court of Iowa.

April 10, 1931.

Appeal from District Court, Appanoose County; R. W. Smith, Judge.

This is an appeal from an order of the district court of Appanoose county, Iowa, overruling the motion of appellants for a decree ordering the return of certain taxes paid and canceling others. The lower court denied the relief asked, and the plaintiffs appeal. The facts appear in the opinion.

Affirmed.

EVANS, J., dissenting.J. G. Gamble and A. B. Howland, both of Des Moines, for appellant Chicago, R. I. & P. Ry. Co.

H. E. Valentine, of Centerville, and W. D. Eaton and J. C. Pryor, both of Burlington, for appellant Chicago, B. & Q. R. Co.

W. B. Hays, Co. Atty., of Centerville, John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for appellees.

GRIMM, J.

There are here two cases, but we will treat them as one.

In 1924, the Fortieth General Assembly of Iowa, in Extra Session, passed what is commonly known as the Local Budget Law (chapter 4), which became effective April 25, 1924. Section 64 of said Act reads as follows: “ Estimate for emergencies. Each municipality may include in the estimate herein required an estimate for emergency or other expenditure which amount cannot reasonably be foreseen at the time the estimates are made, and such emergency fund shall be used for no other purpose.” This section became section 373 of the Code of 1924 and is section 373 of the Code of 1927.

In making up the tax levy for county purposes for Appanoose county for the year 1926, the board of supervisors included therein a levy designated as “County Emergency Levy,” and the same was spread upon the tax lists of the county. The property of the plaintiff was assessed with said tax, and the first half thereof was paid, under protest, before April 1, 1927. In June, 1927, the plaintiff railway company brought a suit in equity, setting forth the facts and praying for a writ directedto the board of supervisors to refund to the plaintiff the sum paid, asking a writ of injunction “restraining and enjoining defendant county from proceeding to collect the balance of the tax and directing and ordering said county to cancel the last half of said taxes.” On August 25, 1927, the lower court held against the plaintiff. This case was then appealed to this court, and on March 5, 1929, this court rendered a decision reversing the lower court in its refusal to refund the taxes. Chicago, Rock Island & Pacific Railway Co. v. Streepy, 207 Iowa, 851, 224 N. W. 41. The holding in that case is based upon the proposition that chapter 4 of the Acts of the Extra Session of the Fortieth General Assembly, in so far as the same included section 64 of said act (section 373, Code of 1924 and Code of 1927), was unconstitutional because the title of the act was not sufficient, there being no sufficient reference therein to the so-called emergency fund. Thereafter a procedendo was issued by the clerk of this Court, and the same was filed in the district court of Appanoose county, directing the latter court to act in accordance with the decision and opinion of this court in each of said cases. Within a few days after the decision of this court in said Streepy Case, the Legislature of the state of Iowa, being then in session, passed chapter 396 of the Acts of the Regular Session of the Forty-Third General Assembly, which became effective March 27, 1929, and is a Legalizing Act, which reads as follows:

“Taxation. Legalizing.

An Act to legalize any and all tax levies heretofore made and collected by any municipality under and pursuant to the provisions of law as contained in section three hundred seventy-three (373) and chapter twenty-four (24) of the code, 1927.

Be it enacted by the General Assembly of the State of Iowa:

Section 1. All taxes heretofore assessed, levied or collected by any municipality as defined by the law as it appears in chapter twenty-four (24) of the code, 1927, for the purpose of establishing and creating an emergency fund under and pursuant to the provisions of what purported to be the law as contained in section three hundred seventy-three (373) of the code, 1927, be and the same are hereby declared legal and valid, and where the same have not been paid, the officers of such municipalities are hereby empowered and directed to proceed at once to collect the same as other taxes are collected, and to use the same in the same manner as they could have been used were they assessed, levied and collected under a valid provision of law.”

Thereafter the plaintiffs herein filed in said district court a motion for judgment and decree “directing a refund by the county treasurer or in the alternative to command the said defendants to direct the county auditor to draw a warrant upon the county treasurer for the amount paid for the first half of 1926 taxes payable in 1927.” To this a resistance was filed on the 2d day of January, 1930. The lower court held for the defendants. The lower court found that the Forty-Third General Assembly had legalized the acts of the board of supervisors in levying the tax of which complaint was made. This appeal is from this ruling of the lower court.

In June, 1930, this court decided the case of the Chicago, Rock Island & Pacific Railway Co. v. Rosenbaum, 231 N. W. 646, in which the plaintiffs resisted the collection of the so-called “emergency tax” in Muscatine county. Many of the questions presented on this appeal have been determined in said case, and no further reference need here be made thereto.

According to the appellant, “there is but one issue in this case; that is, whether the decision rendered by this court herein (Chicago, Rock Island & Pacific Railway Co. v. Streepy, 207 Iowa, 851, 224 N. W. 41), is to stand, or whether this court is to recognize chapter 396, Acts 43rd General Assembly, enacted by the Legislature subsequent to the rendering of said decision, as controlling and overruling said decision.”

Generally speaking, it is the contention of the appellant that the holding of this court in Chicago, Rock Island & Pacific Railway Co. v. Streepy, 207 Iowa, 851, 224 N. W. 41, fixed the rights of the parties and entitled the plaintiff to a refund of the taxes paid, and that after said decision the Legislature was without power to pass a legalizing act which could in any wise modify the plaintiff's right to recover said taxes, as fixed in said decision.

At the outset, it will be borne in mind that this court did not hold that the Legislature did not have the power to provide for the said emergency fund by delegating to the several boards of supervisors in the state the right to create such a fund. The act was held unconstitutional only because the title of the act was not sufficiently comprehensive in that it did not include any proper reference to the section providing for the emergency fund as was said in Chicago, Rock Island & Pacific Railway Co. v. Rosenbaum (Iowa) 231 N. W. 646, 647: “It is not asserted by the appellant that there is any constitutional provision that prohibits a delegation by the Legislature to the municipalities of the power to create and make a levy for an emergency fund. Therefore, for the determination of the case which we have before us, we may properly assume that the previous statute is constitutional, except as held by us that the title to the act is insufficient to include the subject-matter contained in section 373; or, in other words, that there would have been a valid grant of power to the municipalities, except for the insufficiency of the title to the act. We may properly assume that, had the title to the act been sufficient, then the validity of the tax involved herein could not be called in question.”

[1] “Municipality,” as used in the foregoing language, includes boards of supervisors of counties. See section 369, Code of 1927.

The plaintiffs (appellants) contend that, after this court found for the plaintiffs, there remained only the mere formal act on the part of the lower court to render a decree in accordance with the holdings of this court, that the rights of the parties had been determined and fixed, and that after the ruling of this court, the plaintiffs-appellants were entitled to a refund of the money they had paid out. They contend that no legalizing act could be passed which, retroactively, could affect the rights of the plaintiffs as determined by the finding of this court.

[2] It is further contended that, if the legalizing act referred to is to be permitted to override the finding of this court in Chicago, Rock Island & Pacific Railway Co. v. Streepy, 207 Iowa, 851, 224 N. W. 41, that would amount to an unwarranted and improper interference between the legislative branch of the government and the judicial branch. As to the contention that the Legislature had no power to pass a retroactive legalizing act, the law is that, if the Legislature possessed the power in the first place to authorize the levy and collection of the taxes in question, then it had the power by retrospective act to cure any defect which may have obtained in the assessment and collection of such a tax. Chicago, Rock Island & Pacific Railway Co. v. Rosenbaum (Iowa) 231 N. W. 646, and cases cited.

[3] Moreover, thus exercising this power by the Legislature is not an impairment of any vested right of the taxpayer. Chicago, Rock Island & Pacific R. Co. v. Rosenbaum (Iowa) 231 N. W. 646;Boardman v. Beckwith, 18 Iowa, 292. See, also, Iowa Railroad Land Co. v. Soper, 39 Iowa, 112;Tuttle v. Polk, 84 Iowa, 12, 50 N. W. 38.

Some of the foregoing cases have been dealt with at length in the Chicago, Rock Island & Pacific Railway Co. v. Rosenbaum, 231 N. W. 646, 648. This court there said:

“In Boardman v. Beckwith, 18 Iowa, 292, by reason of a change in the revenue laws of the state, there was no provision whatever for a...