Langworthy v. City of Dubuque

Wright, J. — The labor of counsel in these cases has been fully equal to their importance to the city and parties sought to be taxed. By the amendatory act the city limits were increased some 6,000 acres, and we are to determine whether the lands thus included, of the character and description specified in the petitions of complainants, (for these are two cases each involving the same question,) can be taxed by the corporation. The question might be greatly elaborated, but, in our [88] opinion, it is so fully and satisfactorily settled in tbe case of Morford v. Unger, 8 Iowa, 82, that further argument could not make it clearer. We think it very manifest from the report of the master, which is fully warranted by the testimony, that these lands were not necessary for city purposes; that they were not lots, nor outlots, but lands used for mining, horticultural, grazing, farming and other similar purposes; that the sole object in bringing them within the city limits was to increase the city revenue that complainants did not, nor did they propose to lay the same off into lots, or invite purchasers to settle upon and occupy them, and that the effect of the legislation, if sustained, would be to subject their property to public use, without just compensation. True, there is some testimony'tending to show that complainants voted at the municipal election, that they paid taxes on their property, assessed in 1857 and prior years, (but not always without entering their protest) and prayed for improvements, some of which were granted, and others not. But we do not think that any nor all these considerations combined, should estop them from contesting the right of the city to tax this property. Aside from some positive and affirmative act of the partie's upon which the city relied, and was induced to act to its prejudice, the complainants would not be concluded. The right to property is a vested one. The power to tax it belongs alone to the legislative arm of the government, or local municipal organizations acting under the power given by the legislature. This power, while it is, when properly exercised, to be unreluctantly obeyed, yet operating as it does upon this vested right, it should be watched with jealous care, and if illegal, mere submission on the part of the citizen to this “ one arm of the tremendous power of eminent domain,” should not, except in an extreme case, be construed into a recognition of the right, to the extent of estopping him from subsequently denying it. And more [89] particularly is this so, when parties are under the impression that they are without remedy, and in ignorance of their rights in the premises. We see no reason for disturbing those decrees, and they are therefore affirmed.