Slutts v. Dana

• Decision Date: 11 April 1908
• Parties: SLUTTS v. DANA, COUNTY TREASURER, ET AL.
• Court: Iowa Supreme Court

138 Iowa 244

115 N.W. 1115

SLUTTS

v.DANA, COUNTY TREASURER, ET AL.

Supreme Court of Iowa.

April 11, 1908.

Appeal from District Court, Wapello County; Robert Sloan, Judge.

Action to enjoin and restrain defendant treasurer from collecting a tax upon plaintiff's property in the city of Ottumwa to pay certain bonds issued by Wapello county, and to enjoin the defendant board of supervisors from levying, or attempting to levy, any taxes upon the taxable property within the city of Ottumwa to pay either the interest or the principal of said bonds. The case was tried to the court, resulting in a decree for plaintiff, and defendants appeal. Affirmed.

See 109 N. W. 794.

Deemer, J., dissenting.W. W. Epps, County Atty., and Mitchell & Hunter, for appellants.

Gilmore & Moon, for appellee.

SHERWIN, J.

This is an action by a taxpayer in the city of Ottumwa, originally brought on his own behalf, but afterwards converted into an action on behalf of all citizens or taxpayers of the city of Ottumwa similarly situated, to restrain defendant county treasurer from collecting what is called a “bond tax” levied by defendant board of supervisors of Wapello county upon all the property in said county for the purpose of paying certain county bonds held by the Northwestern Mutual Life Insurance Company of Milwaukee, Wis., and to restrain defendant board of supervisors, its successors in office, from levying any future taxes upon said property for the payment of either the principal or the interest on said bonds. The holder of the bonds was not made a party to the proceedings, but the trial court, upon issue joined by defendants, granted plaintiff the relief prayed.

The facts are not seriously in dispute. The city of Ottumwa in Wapello county is a city of the first class. In January of the year 1898 the board of supervisors of Wapello county, by proper resolution, authorized the issuance of 20 county bonds, each for the sum of $1,000, due in blocks of five October 1, 1904, October 1, 1905, October 1, 1906, and October 1, 1907. These bonds were known as “Wapello County Funding Bonds,” and bore interest at the rate of 4 1/2 per cent. These bonds were to take up certain warrants theretofore issued by the county. Another issue of 14 bonds was made April 12, 1898, 7 of them maturing October 1, 1908, and the other 7 October 1, 1909. These bonds were either exchanged for county warrants, or the money received from the sale thereof was used in taking up outstanding warrants. These warrants had been issued against the bridge fund of the county for bridges either built or repaired after March, 1893, in that portion of the county outside the limits of the city of Ottumwa. The bonds were purchased in good faith and for full value by the life insurance company above named, without any suspicion, notice, or intimation that they did not constitute a valid indebtedness on the part of the county, and the said company is now the owner and holder of the 24 bonds remaining unpaid. The value of the taxable property in the city of Ottumwa is $9,818,304, and of that within the county and outside the city limits $15,817,216. The bonds which have been paid were liquidated by taxes levied upon all the property in the county, and in September of the year 1905 defendant board of supervisorslevied a three-mill tax upon all the property in the county subject to taxation to pay the aforesaid bonds and interest. That levy was extended upon the taxbooks for the year 1905, and this action followed.

It is conceded in argument that cities of the first class may build and repair bridges within their own limits at their own expense, and may levy taxes therefor upon all the property within their limits. Code, §§ 758, 888. It is also conceded that under section 1303 of the Code the board of supervisors may levy taxes for the building and repair of bridges in that portion of the county outside of such cities, the levy being confined to property outside of the cities so excluded. Upon the original submission the appellants claimed, as they do now, that the board of supervisors had no authority to issue the bonds in question. This was conceded by the appellee, and it was upon the theory thus presented that the former opinion was based. The appellee now contends that the board had power to issue the bonds and to levy taxes for their payment, but only on the property outside of the city of Ottumwa. It is now further conceded by the appellee that, unless the bonds were legally issued, he has no case; and it is practically conceded by the appellants that, if they were issued with authority, property in the city of Ottumwa cannot be compelled to contribute to their payment, so far at least as the parties to this contest are concerned. Section 403 of the Code provides that: “Whenever the outstanding indebtedness of any county on the first day of April in any year exceeds the sum of five thousand dollars, the board of supervisors * * * may fund or refund the same, and issue the bonds of the county therefor.” It is therefore manifest that the ultimate question for determination as between the parties to this action is whether an indebtedness incurred for building and repairing bridges outside of cities of the first class is a county indebtedness within the meaning of section 403. If it is, and was before the enactment of chapter 16, p. 15, Acts 30th Gen. Assem., the section itself was sufficient warrant for the bond issue in question. In determining the question of county indebtedness it is equally as evident that the several provisions of the statute relating to the powers of a city of the first class and of the board of supervisors relating to building and repairing bridges be considered in their relation to each other. Subdivision 18 of section 422 of the Code gives the board of supervisors power “to provide for the erection of all bridges which may be necessary, and which the public convenience may require, within their respective counties, and to keep the same in repair, except as is otherwise provided by law.” One of the exceptions to the power given in section 422 is to be found in section 758, which provides that: “Cities of the first class shall have full control of the bridge fund levied and collected as provided by law, and shall have the right to use the same for the construction of bridges, * * * repairing the same and paying bridge bonds and interest thereon issued by such city, and shall be liable for defective construction thereof, and failure to maintain the same in safe condition as counties now are with reference to county bridges; and no county shall be liable for any such bridge or injuries caused thereby.” And section 888 gives cities of the first class power to annually levy a tax not exceeding three mills on the dollar to be known as the city bridge fund. Section 888 provides the city with means for exercising the power conferred in section 758. And it is worthy of note that the amount of the levy is the same as the board of supervisors is authorized to make on outside property under section 1303 of the Code. Section 1303 expressly excepts cities of the first class from the provisions of section 422 by providing that the bridge tax therein authorized shall not be levied upon any property assessable within the limits of any city of the first class, and that none of such tax shall be used in the construction or repair of bridges within the limits of such city. These provisions of the statute clearly withhold from the board of supervisors all power and jurisdiction over bridges in cities of the first class, and as clearly vest the board with the power to build and repair bridges outside of such cities. Section 1303 expressly authorizes the board of supervisors to levy a tax on all property outside the limits of any city of the first class for making and repairing bridges, and this section and section 422 clearly relate to county bridges, and define what is meant thereby in the statute. So far, then, as bridges are concerned, the Legislature has removed cities of the first class from the jurisdiction of the board of supervisors and from the operation of the law governing the county as a quasi corporation, and, in our judgment, without in any way impairing the power of the board outside such cities. And if this be true, it seems to logically follow that the board may, in such cases, proceed to build and repair bridges within its jurisdiction just as it would if there were no city of the first class within the geographical boundaries of the county. In other words, the Legislature has said that, so far as bridges are concerned, a city of the first class is not a part of the county, and that the board of supervisors shall bridge and repair without reference thereto. That the Legislature may so ordain, within constitutional limitations, will hardly be questioned. “A county is a public corporation, which exists only for public purposes connected with the administration of the state government, and it and its revenues are alike, where no express restriction is found to the contrary, subject to legislative control.” Raymond v. Hartford Fire Ins. Co., 196 Ill. 329, 63 N. E. 745;Swartz v. Lake County Com'rs, 158 Ind. 141, 63 N. E. 31. Under a statute prohibiting counties from subscribing for stock in any incorporated company, unless the same be paid for at the time of such subscription, it is held that cities, though an integral part of the county, are not intended to be included in the prohibition. Thompson v. City of Peru, 29 Ind. 305.

That certain territory may be a part of a county for some purposes, but not for all, is well settled. State of South Dakota ex rel. Dollard v. Board, 1 S. D. 292, 46 N. W. 1127, 10 L. R. A. 588;Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 33 L. R. A. 620. But as we have heretofore said, it is a question of legislative intent, which intent is to be gathered from the entire statutory law on the subject; and the citation of...