City of Leavenworth v. Norton

By the Court, Baxley, J. The city of Leavenworth, by its proper officers, levied upon certain lots the following taxes-for the year 1858, to wit; ' First. A tax of one-half of one per cent, on the dollar for the purpose of general revenue.- ' • ’ Second. A tax of one mill on the dollar for the purchase of lots and the erection of school houses- thereon, within the city. ' -■ Third. A tax of one mill on the dollar for tho support of schools id said city. , Fourth. A special tax of one and óne-half mills on the dollar for the support and maintenance of a city hospital, and the support and care of the poor of the Pity. Fifth. A special tax of ten mills on the dollar to defray the liabilities and expenses of the' city-incurred in the- erection of a market house amd city hall. Sixth. A special tax of one mill on the dollar for the purpose of paying interest on the bonds of the city, issued in-1858, which fall duo in 1859. Seventh. A special tax of two mills- on the dollar for culverts- and bridges. Eighth. A special tax of one mill on the dollar for' building cisterns and support of the fire department. [434] Said taxes not being paid upon the lots owned by defendants in error, the city, by its officers, on or about the 9th day of June, 1859, proceeded to sell said lots at auction, and in 1861 were about to execute deeds for said lots to the purchasers at such sale, when defendants in error commenced suit in the district court for Leavenworth county, to have said sales set aside, and to have said city arid its officers restrained, by injunction, from conveying said lots in pursuance of said sales, and from executing and delivering deeds to the purchasers. The city of Leavenworth and George Einstein, city clerk, the now plaintiffs in error, appeared and defended against said suit, and on the 16th of June, 1862, a decree was made by said court perpetually enjoining the city audits officers, as prayed for by the defendants in error. From that decree the plaintiffs in error seek to bo relieved, by bringing their cause into this court on petition in error. Article seven of the charter of the city of Leavenworth, in force at the time of this levy and sale, defines the powers of said city, which are, among other tilings, as follows, to wit: Section 1. The city council shall have power to levy and collect taxes apon all real and personal property within the limits of the city, for the purpose of general revenue, not to exceed one half of one per cent., upon the assessed value thereof, in each year, in any manner to be previously provided by ordinance. Section 2. To provide for the sale of real estate, &c. Section 8. To impose a poll tax, not exceeding one dollar. Section 4. To levy and collect a license tax on auctioneers, taverns, hawkers, peddlers, .&c. Section 7. To erect, establish and regulate hospitals, work houses and poor houses, and provide for the government and support of the same. [435] Section 12. To erect and establish market houses and market places, and to regulate and govern the same, and to provide for the erection of all other useful and necessary buildings for the use of the city. Article ten • provides for the government and support of common schools in said city, and contains, among others, the following provisions, to wit: Sección 1- The council of saje].; city ¡ire hereby authorized and required, at the expense of.^'tid. city, to provide for the suppor&'.'of common schools therein'. . • Section 3. The said councif^afe' hereby authorized and required' to purchase, in foe simple,* or to receive as a donation for thq use of said city, at the expense of the samo, in each of said school districts, a suitable lot of .land * * * * * * * for a school house, and * * * to cause tobe erected thereon a good and substantial.' school house, and to defray the necessary expenses of. the building and construction of .said school houses, as also fo pay the purchase money for the lots of land on which the'- same shall be erected. It shall be lawful, and is hereby made the duty of said city council' annually to levy, or cause tof be levied, in addition to the other taxes of the city, a tax, 'not greater than one mill on the dollar, upon all property in said city, liable to taxation, for city purposes, until a sufficient"' siim shall be raised and collected from such tax to meet 'the expenses which shall be incurred for the purchase of lots; hf^land, and for the erection of school houses aforesaid. . ' ' . Section 4. That for the purpose of more effectually supporting common schools in said ■‘city’‘and to secure the benefit and blessings of an education to - all the children therein, it shall be the duty of the city' 'coiineil, and they are hereby authorized to levy and collect an annual tax of one mill on a dollar upon all the property in jsajid city subject to taxation for city purposes, which tax shall be exclusively appropriated to defray the necessary expenses:of said schools. [436] These sections contain all the powers expressly granted to levy taxes upon real estate in said city ; and it will be seen, upon examination, that no power is expressly granted to the council to tax such property, except to the extent of five mills on the dollar for general revenue, one mill on the dollar for the purchase of lots and the erection of school houses thereon, and one mill on the dollar for the support of common schools. To this extent the power is expressly given, and the taxation of the year 1858 is to that extent undoubtedly legal and valid; that is to say, to the extent of seven mills on the dollar. As to the remainder of the taxes levied in that year, no express authority is claimed on the part of the plaintiffs, but they claim that inasmuch as it is made the duty of the city to erect hospitals, poor houses, market houses, &c., the power to raise money for that purpose is necessarily implied. We do not think so. The city of Leavenworth is a municipal corporation, created by the act of the legislature, and its powers are strictly limited and controlled by the will of its creator, as expressed and defined in the charter or act of incorporation. All powers not expressly granted by the charter, or necessary to carry out the powers expressly granted, are denied. The corporation can take nothing by implication. The authorities to this effect are too numerous and too well known to need citation. The judgment must be affirmed. Judgment affirmed. All the justices concurring.