Chicago, M. & St. P.R. Co. v. Phillips
| Decision Date | 14 May 1900 |
| Parties | CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY; IOWA CENTRAL RAILWAY COMPANY; and MASON CITY & FORT DODGE RAILROAD COMPANY v. LAMBERT W. PHILLIPS, County Treasurer of Cerro Gordo County; MIKE FORD; R. C. DE LA HUNT AND CITY OF MASON CITY, Appellants |
| Court | Iowa Supreme Court |
Appeal from Cerro Gordo District Court.--HON. J. C. SHERWIN, Judge.
THE plaintiffs pray that a certain sewer tax levied by the defendant city upon certain properties of the plaintiffs be decreed to be unlawful and void, and that the defendant county treasurer be perpetually enjoined from attempting to collect the same. The defendants Ford and De La Hunt made default, and the other defendants answered as will hereafter appear. Plaintiffs moved for judgment on the pleadings, which motion was sustained, and judgment and decree rendered as prayed, from which the answering defendants appeal.
Affirmed.
Richard Wilber for appellants.
Blythe Markley & Smith for appellees.
OPINION
I.
The pleadings show, in substance, as follows: It appears from the petition that the defendant city is divided into two taxing sewer districts, one of which is known as the "Willow Creek Sewer District;" that in 1896 the plaintiffs each owned and operated a steam railway extending through or into said district and to other towns in the state. On August 6, 1896, the city, by resolution, in pursuance of an ordinance, authorized the construction of a sewer in said district; "the cost of building the same to be paid by proceeds of a sewer tax to be levied on all the real estate in the district according to its valuation. The sewer was located, and a contract made with the defendants Ford and De La Hunt for its construction. On July 30, 1897 the city council passed a resolution "that a special tax of five cents on the dollar of the assessed valuation be levied on each lot or parcel of ground within the district for the purposes of defraying the expenses of said sewer, and that the clerk prepare an assessment list of each lot or parcel of ground, and the amount assessed against each." The clerk prepared and certified to the county auditor such a list, which included the real estate of the plaintiffs used in the operation of their respective roads within said district. The tax so certified was placed upon the books, and passed to the defendant treasurer for collection with the taxes of 1897, and he was proceeding to collect the same. Plaintiffs allege that neither of them was a resident of, or kept its principal place of business in, said district, and had no property therein, except what was exclusively used in the operation of their several railways; that in said years the executive council of the state assessed all the property of each plaintiff as a unit, composed of real, personal, tangible, and intangible property, without distinction, according to value, and inseparably; that said tax so certified was arrived at by estimating the supposed length of track of each of said railroads in said district, and computing the value thereof according to the estimation made by the executive council, thus including the personal property of the plaintiffs in the levy, while only the real estate of other owners was so included. They allege that said sewer is of no value to them, and that the board of supervisors of said county did not in either of said years make to be entered of record any order declaring the length of track or assessed value of any railway line within the said district. The answer, as set out, is as follows: "Denying that said sewer is not or will not be of any special benefit to plaintiffs, but alleges that they will have the same privileges of connection therewith as other taxpayers; admit that the board of supervisors did not in either of the years 1896 or 1897 make an order of record stating and declaring the length of the main track and assessed valuation of either of said railways in said Willow Creek sewer district, as provided by section 2020 of McClain's Code, but deny that the length of main track and assessed valuation of said railways were not stated or determined, and allege that the exact length of track of each of said railways and their assessed valuation within said sewer district was ascertained by the council of said city at the time said taxes were levied; and said taxes are the same, and no more, than if said matters had been determined by the board of supervisors."
II. The defendants Ford and De La Hunt are not necessary parties to this action or appeal, and, not having appeared, will not be further noticed. Appellants insist that the plaintiffs have an adequate remedy at law, "by appeal from the assessment," and are, therefore, not entitled to be heard in equity. If the tax is void, as claimed by the plaintiffs, equity will grant relief. Standard Coal Co. v. Independent Dist. of Angus, 73 Iowa 304, 34 N.W. 870; Brandirff v. Harrison County, 50 Iowa 164; Cattell v. Lowry, 45 Iowa 478; Rood v. Board, 39 Iowa 444; Macklot v. City of Davenport, 17 Iowa 379. Whether this tax is void or not is the question involved in the case, and whether relief may be granted in equity depends upon our conclusion on this question. Appellants also insist that plaintiffs are not entitled to relief, for the reason that they do not offer to pay the part of the tax that is legal. Plaintiffs are before us averring that no part of the tax is legal, and that it is void in toto, and, if this be true there is nothing legally due from them.
III. We now look to the pleadings to see whether it appears therefrom that this tax is illegal and void. The answer joins but one issue. It denies the allegation that the sewer is of no special benefit to any of the plaintiffs. While the right to levy is limited to real estate within the district, upon the general theory that...
To continue reading
Request your trial