State ex rel. Howe v. Mayor

Decision Date09 October 1897
Citation72 N.W. 639,103 Iowa 76
PartiesSTATE EX REL. HOWE, COUNTY ATTORNEY, v. MAYOR. ETC., OF CITY OF DES MOINES ET AL.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from district court, Polk county; W. F. Conrad, Judge.

Action for mandamus to compel the city council of the city of Des Moines to levy a tax for the purpose of creating a sinking fund to build a library building in said city, and to compel said city council to levy a tax for the maintenance of a library. Jury waived, trial to the court, and judgment for defendants for costs. Plaintiff appeals. Affirmed.Read & Read and Hubbard & Dawley, for appellant.

J. K. Macomber and Bishop, Bowen & Fleming, for appellees.

KINNE, C. J.

1. The conceded facts in this case are as follows: The city of Des Moines, a city of the first class, in 1882, by a vote of its electors, accepted the provisions of the statute of this state relating to the establishment and maintenance of free public libraries, and had, in the exercise of the powers conferred upon it, established and was maintaining such a library. In pursuance of law a board of library trustees had been appointed, and was exercising the powers and duties imposed upon it. On July 31, 1896, said board of trustees did fix and determine a rate of taxation of one mill on the dollar of the taxable valuation of the property in said city for the purpose of maintaining the public library, and at the same time did fix and determine a rate of taxation of three mills on the dollar for the purpose of creating a sinking fund for the purchase of a lot and the erection of a library building, and did cause said amounts so fixed and determined to be certified to the city council of said city. Said city council refused to levy and certify to the county auditor said amounts so certified to them by said board of library trustees, but did levy and certify one-half a mill tax for the purpose of the maintenance of the library. Thereupon this action was brought to obtain a writ of mandamus compelling the city council to levy and certify the rates of taxes fixed and determined by the board of library trustees. As is said by counsel for appellants: “The ultimate question to be determined is whether or not the city council in cities of the first class accepting the provisions of the statute relating to the establishment and maintenance of free public libraries, and maintaining such library, is bound and required to levy and certify the amount of taxes or the rate of taxation fixed and determined by the board of library trustees of said city.”

2. On the one hand it is contended that the statute vests in the board of library trustees absolute power to fix and determine the amount of the levy to be made for the purpose of maintenance of the library, and of creating a sinking fund for the purchase of a lot and the erection of a library building, subject only to the limitations in the statute; and that the duty devolves upon the city council to levy and certify the sums so certified to them by said board; that the city council is without any discretion in the matter. On the contrary, the appellees contend that the board of library trustees has no such power; that its power in the matter is advisory merely, and that the city council is invested with a discretion as to the amount or amounts which shall be levied for the purposes mentioned. As in the discussion which may follow reference may be made to various acts of the legislature touching the creation and maintenance of free public libraries, it may tend to brevity to here recite the substance of all such statutes which can have any bearing upon the question under consideration. Chapter 45, Acts 13th Gen. Assem., provided that cities of the first and second classes might levy an annual tax not exceeding one-half mill on the dollar of the taxable property in such city for the maintenance of a free public library and reading room, provided a suitable lot and building be first donated for such purposes. The city council was authorized to appoint officers for such library and reading room. The 14th general assembly, in chapter 47, extended the provision of the former act so as to include incorporated towns, increased the amount of the levy, and authorized all the municipalities referred to in the act out of the money raised to purchase land and erect buildings or lease rooms. The act also provided that before exercising any of the powers conferred it should be accepted by a vote of the people. The same provisions, in substance, were incorporated in the Code of 1873 (section 461), in which it was declared that “the establishment and maintenance of a free public library is hereby declared to be a proper and legitimate object of municipal expenditure.” Such was the law in force at the time the electors of the city of Des Moines voted to accept its provisions, and to establish a free public library. By chapter 41, Acts 25th Gen. Assem., it was provided that in any city which had accepted the provisions of Code, § 461, there should be created a board of library trustees, to be appointed by the mayor, with the approval of the council. That act vested in said board full power of control over the library, including the power to appoint and remove librarians and employés; that they should have full power over the moneys raised for the library by taxation; and said act also contained the following, viz.: “The board of library trustees shall, before the first day of August in each year, determine and fix the amount or rate to be appropriated for one year under section 461 of the Code of Iowa for the maintenance of such library, and cause the same so fixed to be certified to the council, and the council shall make such appropriation and levy the necessary tax for such year to raise said sum and certify the percentage or rate not exceeding one mill on the dollar of such tax to the county auditor, * * * provided that in cities of the first class the city council may and shall levy and certify such further sum of tax as it may deem expedient to create a sinking fund and pay interestunder the provisions of chapter 18, Acts of the 22d General Assembly, and acts amendatory thereof.” By chapter 99 of the acts of the same general assembly power was conferred upon the city to levy and collect a tax of not exceeding three mills on the dollar to pay interest on any indebtedness theretofore contracted or to be thereafter contracted or incurred for the purchase of real estate and the erection of a building or buildings for a public library, and to create a sinking fund for the payment of such indebtedness. By chapter 5, Acts 26th Gen. Assem., the tax was authorized to be collected annually. By chapter 50, Acts 26th Gen. Assem., it was provided that the board of library trustees should determine and fix the rate, not exceeding one mill on the dollar, for the maintenance of the library, and not exceeding three mills on the dollar for the purpose of paying for a building and the creation of a sinking fund, and “cause each of the amounts or rates so determined and fixed to be certified to the council, and the council shall levy the taxes necessary to raise said sums respectively for such year, and certify the precentage or rates * * * of such tax to the county auditor.” In pursuance of the provisions of chapter 41, Acts 25th Gen. Assem., a board of library trustees had been appointed. In March, 1892, the city of Des Moines, as it then existed, by a vote of the electors accepted the benefit of the law relating to public libraries. Prior to the passage of the acts of the 26th general assembly, the city council was clearly invested with discretionary power as to levying a tax for a library building and for the creation of a sinking fund. The act of the 26th general assembly in terms seems to require the council to levy and certify the tax certified to it for maintenance and for building or sinking fund so long as the same does not exceed the amount provided by the statute.

3. The questions involved in this appeal are of great interest and importance. Irrespective of our duty to uphold the act of the legislature as constitutional, if it be possible to do so without doing violence to well-known legal principles and accepted canons of construction, our interest in the welfare of the people, which is so largely promoted by the establishment and maintenance of public libraries, would prompt us to give the questions presented most careful consideration. If it be conceded that a tax for the maintenance of a public library and for the erection of a library building is a tax for a public purpose, and hence one which, in furtherance of the general public policy of the state, may be compelled to be levied, may the legislature authorize its levy by the board of library trustees? Touching the power of the legislature to delegate the taxing power, Judge Cooley says: “It is a general rule of constitutional law that a sovereign power conferred by the people upon any one branch or department of the government is not to be delegated by that branch or department to any other. This is a principle which pervades our whole political system, and, when properly understood, permits of no exception, and it is applicable with peculiar force to the case of taxation. The power to tax is a legislative power. The people have created a legislative department for the exercise of the legislative power, and within that power lies the authority to prescribes the rules of taxation, and to regulate the manner in which those rules shall be given effect. There is, nevertheless, one clearly defined exception to the rule that the legislature shall not delegate any portion of its authority. The exception, however, is strictly in harmony with the general features of our political system, and it rests upon an implication of popular assent, which is conclusive. These exceptions relate to the case of municipal corporations. Immemorial custom, which tacitly or...

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