McKinney v. McClure
| Decision Date | 26 June 1928 |
| Docket Number | 38725 |
| Parties | F. W. MCKINNEY, Appellant, v. D. B. MCCLURE, County Treasurer, Appellee |
| Court | Iowa Supreme Court |
Appeal from Greene District Court.--M. E. HUTCHISON, Judge.
Suit to enjoin collection of city taxes on agricultural lands. Relief was granted, except as to a 10-mill levy for payment of street improvement fund bonds. Because of this exception the plaintiff appeals.
Affirmed.
Graham & Osborn, for appellant.
Wilson & Harris and W. E. S. Hutcheon, for appellee.
MORLING J. STEVENS, C. J., and DE GRAFF, ALBERT, and WAGNER, JJ concur.
The suit is prosecuted in the interest of numerous owners of tracts similarly situated, all of which, for the sake of brevity and convenience, will be spoken of as plaintiff's lands. These lands are within the corporate limits of the city of Jefferson, but have not been laid off into lots of 10 acres or less, nor have they been divided into parcels of 10 acres or less by the extension of streets and alleys. They are in good faith occupied and used for agricultural or horticultural purposes.
The abstract and amendment do not show the particulars of the street improvements, or of the bond issues on account thereof for which the tax in controversy was levied. From the abstracts and statements and assumptions of counsel in argument we gather that a district for the paving of streets constituting main traveled ways into and out of the city was so established as to include all of the territory within the corporate boundaries. It is stipulated "that the special street improvement bond fund is a levy of not more nor less in any one year than 10 mills, for the purpose of paying the principal and interest upon a $ 65,000 bond issue sold by the city of Jefferson, Iowa, for the purpose of paying deficiencies in paving against all the property of the city of Jefferson, Iowa, where deficiencies occurred, and including the payment of deficiencies upon a part of the real estate" in controversy, arising in part from reductions on appeals taken from the assessments thereon. It is stipulated "that all the property involved herein shall be considered alike in the fact of the use of said $ 64,000 [$ 65,000?] * * * " so that plaintiff "can't raise the question that the incumbent was not benefited by it." It is stipulated that the bond issue of $ 64,000 was "for paving deficiencies, under the provisions of Code Section 840-o of the Code Supplement of 1915, as amended by Chapter 138 of the Acts of the Thirty-ninth General Assembly, and that there remains unpaid the sum of $ 58,000 under said bond issue." One of the bonds attached to the stipulation recites its issuance pursuant to the acts just referred to, and that it is "payable exclusively from the proceeds of a sufficient continuing annual tax which has been duly levied on all the taxable property within said city and is pledged solely for the payment of principal and interest of said series of bonds. * * * " The street improvement fund is thereby pledged for and directed to be used only for the payment of principal and interest of the bonds. The auditor was instructed, for the years 1922 to 1928, inclusive, to levy the tax "upon all the taxable property in the corporate limits of said city of Jefferson * * * and when collected to be used for the purpose of paying principal and interest on such bonds."
The tax then levied was 5.54 mills, but no question is raised that the 10-mill levy is authorized by the statutory amendment above cited.
Plaintiff's contention is that the tax is for city or town purposes, and that, under Section 6210, Codes of 1924 and 1927, his lands, because agricultural, within the definition of that statute, are not taxable therefor. Defendant seeks to justify the tax under Section 6043. These sections read as follows:
It will be noticed that by Section 6210 no land of the character of that under consideration "shall be taxable for any city or town purpose, except * * * town road purposes, at not exceeding 5 mills, and for library purposes."
It will be seen further that, by Section 6043, "when part of the cost of constructing or repairing a roadway within an assessment district is to be paid by the city, it may levy an annual tax * * * upon all the taxable property in such city, except moneys and credits," not exceeding 10 mills.
These sections in their present form were enacted in two code revision bills of the fortieth extra general assembly. Under familiar rules of construction, they are to be construed as being in pari materia, and harmonized, if possible. Section 6210 is a general enactment, the purpose of which is to exempt such lands as those in question from taxation for "city or town purposes." The reason for the enactment undoubtedly was that such property "derives no benefits from being within the city limits." See Durant v. Kauffman, 34 Iowa 194. Such is the purpose of the general enactment, which is couched in comprehensive terms. Section 6043 is, however, a specific enactment, and forms a part of a statute enabling cities "to establish districts, the boundaries of which may be changed as may be just and equitable, for the improvement or repair, by paving or graveling, of such streets within the corporation as in the judgment of the council constitute main traveled ways into and out of such cities." Section 5975. To make such improvements, plat and schedule must be prepared, proposed resolution of necessity adopted, time for hearing set, and notice given, after which construction may be ordered. Sections 5991 to 5999. The cost may be, as it evidently was in this case, assessed in whole or in part upon private property. Deficiencies may be paid out of the general fund or the improvement fund. Section 6011 et seq. The district method of assessment may be used, as seems to have been done in the present case.
By the specific terms of Section 6043, when part of the cost is to be paid by the city, the city may levy an annual tax therefor "upon all the taxable property in such city, except moneys and credits." The property in controversy is in the city. Taxable property is property that may be taxed,--property which...
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