Wells v. Grubb

Day, J. 1. TOWNSHIP trustees: purchase of machinery for working highways: setting apart tax. The authority-of the township trustees to purchase the grader in question is not denied. The only point relied upon by the appellants is, that the trustees had no authority to purchase the grader upon , , , , , , , x ci’ecllt> when no tax had been levied and set apart for fjie purchase thereof, and thus create a debt to be provided for out of taxes to be levied in future years. [387] Section 969 of the Code provides that the township trustees at their April meeting shall determine, “upon the amount of property tax to be levied for highways, bridges, guide boards, plows, scrapers, tools, and machinery adapted to the construction and repair of highways, and for the payment of any indebtedness’ previously incurred for highway purposes, and levy the same, which shall not be léss than one, nor more than five mills on the dollar, on the amount of the township assessment for that year.” This section recognizes the fact that an indebtedness may exist, for which it would be the duty of the township trustees to provide by the levy of a tax, but it confers no substantive power to create an indebtedness. If there is any indebtedness other than for .the purchase of tools and machinery, to which this section may apply, it cannot be said that it applies by implication to an indebtedness created for the purchase of tools and machinery. Section 986 of the Code provides:' “The supervisor shall perform the same amount of labor as is required of an able bodied man, for which he shall be allowed the sum fixed by the trustees for each day’s labor, including the time necessarily spent in notifying the hands, and making out his returns, which sum shall be paid out of the highway fund, after deducting his two days’ work. When there is no money in the hands of the clerk with which to pay the said supervisor, he shall be entitled to receive a certificate for the amount of labor performed, which certificate shall be received in payment of his own highway tax for any succeeding year.” Sections 996 and 997 of the Code provide: “The supervisors are required to meet the township trustees at the meeting on the first Monday in October, in each year, at which time there shall be a settlement of the accounts of such supervisors connected with the highway fund; for putting up guide boards, and for any other services; and after payment of the supervisors, the trustees shall order such distribution of the funds in the hands of the township clerk, as they may deem expedient for highway purposes, and the clerk shall pay the same .out as ordered by’ the trustees. [388] “ Should there be no money in the treasury on final settlement of the supervisors with the trustees, said trustees shall order the township clerk to issue orders for 'the amount due the supervisors. The orders so issued shall be numbered with the number of the district to which they-belong, and shall be received the same as money in the payment of highway tax in the district to which they are issued.” These sections authorize, or at least section 997 authorizes, the creation of a debt due the supervisor, to be paid out of the general township fund. See Tobin v. Township of Emmetsburg, 52 Iowa, 81. A debt is authorized, therefore, to which section 969 of the Code may refer, and it is not necessary, in order to give force to its provisions, that it refer to an indebtedness created for the purchase of tools and machinery. Section 970 of tlie Code, provides: “The trustees shall set apart such portions of the tax specified in the preceding section of this chapter as they may deem necessary for the purpose of purchasing the tools and machinery, and paying for the guide boards mentioned in said section, and the same shall constitute .a general township fund.” The language of this section is very significant. The tax shall be set apart for the purpose of ¡purchasing tools and machinery, and ¡paying for guide boards. Section 994 of the Code requires the supervisor to place 'guide boards at cross-roads, and at the forks of highways in his district. These he must provide and the township trustees must set aside a portion of the tax to pay for them. But as to tools and machinery the statute contemplates a different course. After the tax has been levied, the township trustees must set aside such portion of the tax as they may deem necessary for the future purchase of tools and machinery. The setting apart of the tax precedes the purchase. They may, after the tax is levied and set apart, anticipate the collection of the tax, and purchase tools and machinery upon credit. But we find no warrant in the statute for their making such purchases upon credit, in the advance of the levying and setting apart of the tax. If they may do so, then there is no limit upon the indebtedness [389] which they may create. A civil township is not a corporation. The Township of West Bend v. Munch, 52 Iowa, 132. Hence the constitutional limitation provided in article 11, section 3 of the Constitution, does not apply. But even if the indebtedness should be limited to five per cent on the taxable property of the township, which is ten times the amount of tax which the trustees are authorized to impose, the debt, if bearing interest at ten per cent, would be perpetual, and effectually prevent the township from performing its legal duties as to highways. The limiting of the trustees, in making contracts'for tools and machinery, to cases in which a tax has been levied and set apart for that purpose, imposes a wholesome restraint, both upon the amount of the debt, and upon the disposition to contract it. The answer alleges that at the time the purchase in question was made, the trustees had not levied any tax, and there was no assessment to meet the payment for said machine, and no fund on hand’ for that purpose, but it was purchased without any provision under the law for the payment therefor. - This answer sets up a valid defense. The demurrer to it was improperly sustained. Eevebsed.