Slutts v. Dana

Siierwin, 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 twenty 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% per cent. These bonds were to take up certain warrants theretofore issued by the county. Another issue of fourteen bonds was made April 12, 1898, seven of them maturing October 1, 1908, and the other seven 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, with — 246 — out 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 twenty-four 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,-811,216. 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 supervisors levied 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 taxboohs 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, sections 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 — 247 — the first day of April in any year exceeds the sum of five thousand dollars, the hoard 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, Acts 30th' General Assembly, the section itself was sufficient warrant for the bond issue in question. 1. County bridges: taxation of property: liability of cities of first class. 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 con — 248 — ferred 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, — 249 — 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 foreign cases, based on different statutes, can aid but little in its solution. If for bridging purposes the territory outside Ottumwa is to be considered a county, it follows that the indebtedness created for building and repairing such bridges was a county indebtedness, and, under section 403, the board had the power to issue the bonds of the county for the purpose of redeeming its outstanding warrants. And if the property within the limits of the city cannot be taxed for building and repairing such bridges, it is difficult to see any reason for holding that it can be taxed to pay the bonds. Section 406 of the Code, which provides that the board of supervisors shall cause to be assessed and levied each year “upon the taxable property in the county . . .” a sufficient sum to pay the interest on outstanding bonds and such part of the principal as may be due, does not necessarily mean that such levy shall be made on all the property in the county, including that within cities of the first class. The section does no more than to require the levy to be made on the property in the county taxable for the purpose. It is of course true that ordinarily all property — 250 — in the county not exempt from taxation would be subject to such levy. But when the Legislature, by direct language, or by necessary implication, fixes the limits of the county for certain taxable purposes, whether such limits include all territory within the geographical boundaries of the county or not, it determines what property shall be taxable for the payment of the indebtedness of such county, and the board of supervisors has no power to enlarge or extend the taxing district. 2 Statutes-construction. Chapter 16, Acts 30th General Assembly, provides that, “ in counties containing a city or cities of the first class, the indebtedness incurred in making and repairing of the bridges may be refunded whenever such outstanding indebtedness equals or exceeds the -sum of five thousand ($5,000) dollars, the tax to pay such bonds, and interest to be levied under the provisions of section four hundred and six (406) of the Code, but only on the assessable property in the county outside of the limits of said city or cities of the first class”; and the appellants urge that the enactment of said chapter clearly shows the legislative construction placed upon the law as it theretofore stood. It is quite likely that the Legislature may have thought the power of the board in cases like the present not very clearly defined, and we cheerfully concede as much; but, notwithstanding this, we still think the board had the power when the bonds were issued, which is expressly conferred by chapter 16. While a legislative construction of an act is entitled to due consideration from the courts, it is by no means binding; and whenever it appears that the so-called construing act may have been passed simply for the purpose of removing doubt from previous acts the courts should so consider it. And such was, in our judgment, the purpose of the chapter. The appellants now waive any question as to the bondholder not being a party, and, as it is conceded that the taxable property outside the city of Ottumwa is over $15,- — 251 — 200,000, it is apparent that the rights of the bondholder are not now in jeopardy. He cannot, of course, be concluded in an action to which he is not a party; and, if it shall hereafter develop that sufficient money to pay the bonds cannot be raised by levy on outside property, the holder of the bonds can undoubtedly be protected whenever he shall himself invoke the aid of the court. We think the judgment below right, and it is affirmed.