Chicago, R.I. & P. Ry. Co. v. Rosenbaum

• Decision Date: 23 June 1930
• Docket Number: 40274
• Citation: 231 N.W. 646,212 Iowa 227
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant, v. FRANCES ROSENBAUM, County Treasurer, Appellee
• Court: Iowa Supreme Court

231 N.W. 646

212 Iowa 227

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant, v. FRANCES ROSENBAUM, County Treasurer, Appellee

No. 40274

Supreme Court of Iowa, Des Moines

June 23, 1930

REHEARING DENIED APRIL 11, 1931.

Appeal from Muscatine District Court.--D. V. JACKSON, Judge.

Action in equity, in which the plaintiff asks an injunction against the County Treasurer of Muscatine County, to restrain her from collecting a levy of 3 mills on the dollar as a "County Emergency Tax," said levy having been made by the Board of Supervisors of said County in the year 1928 and payable in the year 1929. The grounds upon which the plaintiff asks relief are the alleged invalidity of the taxes sought to be collected and the averred unconstitutionality of the Legalizing Act, to wit, Chapter 396 of the Acts of the 43rd General Assembly. The defendant attacked the petition by motion to dismiss, as provided for by Section 11130 of the Code, which motion was by the court sustained. The plaintiff elected to stand on the petition, refusing to further plead whereupon, the petition was dismissed upon its merits and judgment rendered against the plaintiff for costs. From the final judgment, the plaintiff has appealed.

Affirmed.

Harold E. Wilson, County Attorney, for appellee.

J. G Kammerer, J. G. Gamble and A. B. Howland, for appellant.

WAGNER J. MORLING, C. J., EVANS, STEVENS, FAVILLE, DE GRAFF, KINDIG, and GRIMM, concur.

OPINION

WAGNER, J.

Only questions of law are involved in the determination of this case. In 1928 the Board of Supervisors of Muscatine County made a "County Emergency Levy" of 3 mills, which was. applied to all assessments upon real and personal property within the County. In making the levy, the Board of Supervisors acted under the assumption of authority of Section 373 of the Code. Said section is a part of the Budget Law contained in Chapter 4 of the Acts of the Extra Session of the 40th General Assembly. On March 5th, 1929, this court held that Section 373 of the Code is void for the reason that the subject-matter therein embraced is not included or expressed in the title to the act of which it is a part, as required by Article 3, Section 29, of the State Constitution. See Chicago, R. I. & P. R. Co. v. Streepy, 207 Iowa 851, 224 N.W. 41. The State Legislature, being at that time in session, immediately enacted a legalizing statute, which became effective upon publication on April 1st, 1929. Said legalizing act is as follows:

"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.

"Section 2. This act being deemed of immediate importance shall be in full force and effect from and after its passage and publication in the Des Moines Daily Record, a newspaper published at Des Moines, Iowa and in the Marshalltown Times Republican, a newspaper published at Marshalltown, Iowa." See Chapter 396 of the Acts of the 43rd General Assembly.

The validity of the taxes levied and the constitutionality of the foregoing enactment are challenged on various grounds hereinafter noted.

It is contended by the appellant that, since the invalidity of Section 373 of the Code was due to a constitutional defect, as held by us in Chicago, R. I. & P. R. Co. v. Streepy, 207 Iowa 851, 224 N.W. 41, the legislature could not, by a curative statute, validate any levy of taxes previously made by any Board of Supervisors or municipality while acting under the power thereby attempted to be given. By a careful reading of the Streepy case, it will be observed that we held that Section 373 of the Code is void only because of the insufficiency of the title to the act. 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. It will thus be observed that the Board of Supervisors of the County (a municipality within the meaning of the law, see Section 369 of the Code), in levying the tax, acted under the assumption of power purported to have been granted by Section 373 of the Code. Since the Board of Supervisors, or the municipality, did not have the power to make the levy, could their acts, under the power attempted to be given by Section 373, be validated by a curative statute? Under the authority of our previous cases, this question must be answered in the affirmative. A curative act is necessarily retrospective in character. See Huff v. Cook, 44 Iowa 639; McSurely v. McGrew, 140 Iowa 163, 118 N.W. 415; Iowa Railroad Land Co. v. Soper, 39 Iowa 112. In Ross v. Board of Supervisors, 128 Iowa 427 (104 N.W. 506), we said:

"The Constitution of Iowa does not forbid the enactment of retroactive laws, and this court has frequently upheld the validity of such statutes."

A curative act may cure or legalize any act which the general assembly could, as an original question, have authorized. Windsor v. City of Des Moines, 110 Iowa 175, 81 N.W. 476. In so far as the determination of this case is concerned, the Legislature could, as an original question, have delegated the authority contained in Section 373 of the Code to the municipality. The distinction made in some jurisdictions between legislation which attempts to cure the acts of officers void for informality or mistake, and that which seeks to legalize official acts void for want of authority, is not recognized in this state. See Iowa Railroad Land Co. v. Soper, 39 Iowa 112, 122. We there said:

"The court in that case (a Kansas case), however, in argument attempts to distinguish between retrospective laws which are passed to supply defects, and cure informalities in proceedings of officers and tribunals acting within the scope of their authority, the laws which are intended to cure or legalize the acts of such officers done without the scope of their authority, holding that retroactive legislation is legal and valid to cure the acts of officers void for informality, irregularity or mistake, but that such legislation is not valid where it attempts to legalize and validate official acts, void for want of power or authority to perform them. We have already seen that such is not the rule established by the cases decided in this court, and which are above cited. There is no foundation for the above distinction, under our decisions."

In Boardman v. Beckwith, 18 Iowa 292, 294, by reason of a change in the revenue laws of the state, there was no provision whatever for a levy of taxes for the year 1858, but, notwithstanding the want of authority, an assessment and levy were made. In 1860 the legislature passed an act legalizing said assessment and levy and authorized the collection of the same as taxes levied under the provisions of existing laws. The case involved the validity of the sale of lands for the taxes of that year, and by virtue of the legalizing act the sale was sustained. In that case, as in this, much stress was placed upon the fact that the levy of the tax was void, and the opinion in effect concedes the illegality of the levy, but it clearly maintains the doctrine that it was competent for the legislature to make valid that which was before void. This court therein made the following pronouncement:

"The point made upon this legislation is that it was not competent for the General Assembly to thus legalize the levy and assessment of 1858; that as there was no law at the time authorizing such levy and assessment, all proceedings thereunder, notwithstanding the curative act, were illegal and void. * * * That it is competent to thus legislate we entertain no doubt. The power of the legislature to pass acts of this character, conducive as they are to the general welfare, and based upon considerations of controlling public necessity, is, in our opinion, undoubted. It does not interfere with vested rights, nor impair the obligation of any contract. Nor is it, we may remark in further answer to appellants' argument, a general statute, having other or less than a uniform operation. It has the operation contemplated by Art. 3, Sec. 30, of the State Constitution; for in no just legal sense is it local or special, but general and uniform."

In Iowa Railroad Land Co. v. Soper, 39 Iowa 112, 118, a certain tax, known as...