Valentine v. City of Juneau

• Decision Date: 03 December 1929
• Docket Number: No. 5931.,5931.
• Citation: 36 F.2d 904
• Parties: VALENTINE v. CITY OF JUNEAU.
• Court: U.S. Court of Appeals — Ninth Circuit

36 F.2d 904 (1929)

VALENTINE v. CITY OF JUNEAU.

No. 5931.

Circuit Court of Appeals, Ninth Circuit.

December 3, 1929.

J. A. Hellenthal and Simon Hellenthal, both of Juneau, Alaska, for appellant.

R. E. Robertson, of Juneau, Alaska, for appellees.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

RUDKIN, Circuit Judge.

Paragraph 9 of section 12 of the Session Laws of Alaska, 1923, p. 197, relating to municipal corporations, provides that the council shall have the power "to assess, levy, and collect a general tax for school and municipal purposes not to exceed two percentum of the assessed valuation upon all real and personal property, and to enforce the collection of such lien by foreclosure, levy, distress and sale. Provided, however, that all property belonging to the municipality or to the Territory, and the household furniture of the head of the family or a householder, not exceeding two hundred dollars ($200.00) in value, as well as all property used exclusively for religious, educational and charitable purposes shall be exempt." Section 58 provides: "The power granted to the council to assess, levy and collect a general tax for school and municipal purposes, shall be exercised by means of general ordinances duly passed by the councils of such corporations; provided, that the rate of levy and the date of equalization, and date when taxes shall become delinquent, may be fixed by resolution. * * *" Id., p. 219.

Pursuant to the authority thus conferred, the city of Juneau has provided by general ordinances for the appointment of an assessor, the listing of all property, real and personal, for purposes of taxation, the filing of the assessment roll with the town clerk, notice of the filing of the assessment roll and of the time and place of meeting of the board of equalization, the equalization of the assessment, the tax levy, the date of delinquency, the collection of taxes on personal property by distraint and sale, the preparation of a delinquent list, and its presentation to the District Court for adjustment and order of sale. May 18, 1928, the council attempted, by resolution, to exclude all bonds, moneys, and choses in action, including money on deposit, from assessment and taxation. The present suit was instituted to enjoin the collection of taxes imposed on certain real and personal property owned by the plaintiff for the year 1928. The validity of the tax was challenged on the ground, among others, that the city failed to list or tax corporate stocks and bonds owned by residents of the city, of the aggregate value of more than $1,000,000, exclusive of bonds and stocks exempt from taxation, and money on hand and on deposit, exceeding in value the sum of $2,000,000. The court below sustained a demurrer to the amended complaint, and from the decree of dismissal this appeal was prosecuted.

We would find no little difficulty in upholding the validity of the taxes in question if their validity depended upon the validity of the exemption allowed by the resolution of May 18, 1928. It is well settled, of course, that the Legislature of a state or territory may classify property for purposes of taxation and may exempt particular property from taxation, in the absence of some limitation contained in the constitution, or other organic law. But the authority of a municipal corporation to allow such exemptions, unless expressly conferred by law, has very generally been denied. McQuillin, Municipal Corporations (2d Ed.) §§ 2559, 2560; Cooley on Taxation (3d Ed.) pp. 344, 356; City of Parkersburg v. Baltimore & O. R. Co. (C. C. A.) 296 F. 78; Mayor, etc., of Jersey City v. North Jersey St. Ry. Co., 78 N. J. Law, 72, 73 A. 609; Whiting v. Town of West Point, 88 Va. 905, 14 S. E. 698, 15 L. R. A. 860, 29 Am. St. Rep. 750; Bessemer Laundry Co. v. City of Bessemer, 215 Ala. 63, 109 So. 104.

Again, the resolution of May 18, 1928, did not relate to the date of levy, the date of equalization, or the date of delinquency, as specified in the statute. It was an attempt on the part of the council to amend general ordinances, relating to the assessment, levy, and collection of taxes, by resolution, and it has been quite generally held that this cannot be done. McQuillin, Municipal Corporations (2d Ed.) §§ 663, 885; Potter v. Calumet Electric Ry. Co. (C. C.) 158 F. 521; American Malleables Co. v. Town of Bloomfield, 83 N. J. Law, 728, 85 A. 167; Marx v. Mayor and Council of Borough of Ft. Lee, 132 A. 320, 4 N. J. Misc. Rep. 274; Chicago, I. & L. Ry. Co. v. Town of Salem, 166 Ind. 71, 76 N. E. 631; Sylvestre v. St. Landry Parish School Board, 164 La. 204, 113 So. 818. Indeed, the statute of Alaska would seem to forbid it. A decision of these questions is perhaps unnecessary, in view of other considerations; but for present purposes we will assume that the attempted exemption was without authority of law.

Did the omission of the exempted property from the assessment...