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[As to Practice in Mandamus Proceedings, see Writs ) SUMMARY Limitation of taxing power; levy of special tax compelled, SS 2106–2108. – Delay

in collecting judgment; appeal to legislature, $ 2109.- Whether United States marshal may assess tax, $8 2109-2111.— Tax liens, S 2112.- Abandonment of charter and reorganization, $ 2113.- Effect of legislation subsequent to judgment, $ 2114.- Valuation of taxable property, $ 2115.- Meaning of cause to be collected," $ 2116.— Power of taxation, SS 2117, 2119.- Different modes of relief; taxes levied before repeal of charter, SS 2118, 2120.- Power of federal courts to levy a tax, 8 2119.— Taxes cannot be diverted, $ 2120.Liability as successor of a corporation, $ 2121. Judgment fixes liability: effect of change of name, etc., SS 2121-2123.- City created out of a town; apportionment of debts, § 2124.— Division or consolidation of corporations, S 2125.— New county carved out of an old one. $ 2126.— Property of dissolved corporation liable for debts, $ 2127.— Change, dissolution or reorganization, SS 2123–2130.- Portion of a town annexed to a city, $ 2131.New town created out of part of old one, $ 2132.— Extinguished corporations, S 2133. — Merger, S 2134. — Dissolution and creation of new corporation, $ 2135.- Loan of bonds to contractors, Ss 2136-2141. What property liable for debts, SS 2142–2148. Effect of repeal of charter, 8 2144.- Property applied to payment of debts on dissolution,

$ 2145. & 2106. A special law limited the power of the city of Muscatine to levy a tax not to exceed one per cent. upon the value in any one year. A subsequent general law provided that, in case judgment should be recovered against any city in that state, a tax sufficient to pay off the judgment, with interest and costs, must be levied as early as practicable. Held, that the one per cent. limitation was superseded by the subsequent enactment, so far as jud ent creditors of the city were concerned, and that municipal authorities might be compelled by mandamus to levy a special tax sufficient to pay their judgments. Butz v. City of Muscatine, SS 2149–52. See SS 2276, 2279.

$ 2107. Where the power of a county to levy taxes was restricted in ordinary cases to a tax of four mills upon the dollar, a return to a mandamus to compel county commissioners to levy a tax to pay a judgment against the county, that they levied a tax of four mills, and continued so to do each year, and had no power to levy a greater tax, is sufficient. Supervisors v. United States, Ss 2153-57.

$ 2103. Section 3275 of the Iowa code, requiring the levy of a tax as early as practicable, sufficient to pay off a judgment against a county, with interest and costs, does not enlarge the power of the county to levy a tax exceeding four mills to pay such judgment upon county warrants drawn for ordinary expenses of the county. Ibid.

$ 2109. Where a judgment is rendered against levee commissioners, who are subsequently legislated out of office, and no attempt is made for fifteen years to collect such juilgment, a mandamus will not be issued to compel surviving commissioners of the old board, or the police juries of the parishes concerned, to assess a tax upon the former levee district of such parishes to pay the judgment in question; nor will the circuit court of the United States direct the marshal to assess such taxes. The only remedy is by appealing to the legislature for an allowance of the claim under the judgment. Barkley v. Levee Commissioners, SS 2158–64. See SS 2246, 2293.

$ 2110. A United States marshal cannot be ordered to assess a tax without special authorization by state statute, and unless the authority whose duty it is to assess and collect the tax has failed and refused to do so. Ibid.

$ 2111. Where judgment has been rendered against a municipality which is without officers to collect taxes to pay it, a federal court will appoint its marshal, or some other proper person, to assess and collect from the property of the municipality a tax sufficient to pay the judgment. Welch v. Ste. Genevieve, SS 2165–71.

$ 2112. Tax liens upon property are imposed for the benefit of the municipality and not for the benefit of its creditors. Barkley v. Levee Commissioners, SS 2158-61.

$ 2113. A corporation incorporated by special charter cannot abandon its charter, without the consent of the legislature which gave it, and reorganize into a new corporation under a general incorporation act providing for the organization of municipalities not already incorporated. The new town organization being without legislative authority, held, wholly without validity, and its officers without right to exercise powers under the general incorporation act or under the special charter. Such officers are not even de facto officers, and cannot be compelled by mandamus to levy and collect a tax necessary to satisfy a judgment against the municipality. Welch v. Ste. Genevieve, SS 2165–71.

$ 2114. Where a judgment against a municipality is rendered, subsequent legislation of the state, restricting the powers of such municipality in reference to the amount and purpose of taxation, must be disregarded, so far as it impairs the creditor's remedy under his judgment. United States v. Port of Mobile, S$ 2172–76.

$ 2115. A mandamus requiring corporate officers “ to assess, levy, and cause to be collected, a special tax," etc., does not apply to the valuation of taxable property for taxing purposes, but means to lay a tax on the taxable property as same is already valued for ordinary taxable purposes, no matter whether such taxation tableau is made up by the state or city authorities. Ibid.

& 2116. “Cause to be collected,” used in a writ of mandamus to compel corporate officers to collect a tax, means that so far as such officers have control over the performance of his duties by the tax collector they shall exercise that control in favor of the collection of the tax. They are excused when they have performed their duty under the law in the premises. Ibid.

$ 2117. The power of taxation is legislative, and cannot be exercised otherwise than under the authority of the legislature. Meriwether v. Garrett, $ : 2224–37.

$ 2118. Taxes levied according to law before the repeal of the municipal charter, other than such as were levied in obedience to the special requirements of contracts entered into under the authority of law, and such as were levied under judicial direction for the payment of judgments recovered against the city, cannot be collected through the instrumentality of a court of chancery at the instance of creditors of the city. Such taxes can only be collected under authority from the legislature. If no such authority exists, the remedy is by appeal to the legislature; it alone can grant relief. Whether taxes levied in obedience to contract obligations or under judicial direction can be collected through a receiver appointed by the court of chancery, if there be no public officer charged with authority from the legislature to perform that duty, is not decided. A receiver and back-tax collector appointed by the legislature for a dissolved municipality held to be a public officer clothed with authority from the legislature to collect taxes levied before the repeal of the charter. Held, also, that the funds collected by him from taxes levied under judicial direction cannot be appropriatel to any other uses than those for which they were received; that he, as well as any other agent of the state charged with the duty of their collection, can be compelled by appropriate judicial orders to proceed with the collection of such taxes by sale of property or by suit, or in any other way authorized by law, and to apply the proceeds upon the judgment. Ibid.

$ 2119. The levy and collection of a tax is a legislative and administrative, and not a judicial function; hence, in the absence of a s atute authorizing them so to do, the circuit courts of the United States cannot levy and collect a tax on municipalities. Ibid. See $ 2241.

$ 2120. When creditors are unable to obtain payment of their judgments against municipal bodies by execution, they can proceed by mandumus, against the municipal authorities, to compel them to levy the necessary tax for that purpose, if such authorities are clothed by the legislature with the taxing power, and such taxes, when collected, cannot be diverted to other uses; but if those authorities possess no such power, or their offices have been abolished and the power withdrawn, the remedy of the creditors is by an appeal to the legislature, which alone can give them relief. Ibid.

$ 2121. A judgment against the Port of Mobile settles all questions as to its liability as the successor of the corporation, known as the mayor, aldermen and common council of the city of Mobile, and fixes its full and absolute liability to pay the debt as ascertained by the judgment. United States v. Port of Mobile, Ss 2172–76.

8 2122. A judgment rendered against a municipality fixes its liability, which will not be affected by a subsequent change of the corporate name and officers, and, by placing the outstanding debts and obligations, as well as all assets and property of the corporation, into the hands of commissioners and the chancery court for liquidation and settlement, and by limiting the amount of taxation. Ibid.

8 2123. A judgment against a municipal corporation may be enforced by a mandamus against a like corporation created to supersede the first. Ibid.

$ 2121. A city was created out of a town by an act of the legislature, which made the city and the town liable, proportionately, for the indebtedness of the town created before the city and town were dissolved. Held, that the apportionment of this liability between the town and the city would depend upon accounts and computations founded upon the proper assessment rolls, which could not be made in an action at law; hence a bill in equity was the proper remedy to apportion such indebtedness between the two municipalities, especially as authority to tax for the payment of municipal liabilities, in cases like this, was in the nature of a trust. Morgan v. Beloit, City and Town, SS 2177–78. See $ 2233.

$ 2125. Where a legislature divides or consolidates municipal corporations, it may settle the terms and conditions of such division or consolidation, including the apportionment of

their debts, and ordinarily injustice in apportioning such debts will not invalidate such legislative consolidation or division. Laramie Co, v. Albany Co., SS 2179-83. See § 28).

$ 2126. When a new county is carved out of an old one the rule is that the old corporation owns all the public property within its new limits and is responsible for all debts contracted by it before the act of separation was passed, and must pay such debts without claiming contribution from the new county, which on its part can lay no claim to any portion of the public property except what falls within its boundaries to which the old corporation has no claim. Ibid.

$ 2127. The property of a dissolved corporation is in equity liable for its debts. Broughton v Pensacola, SS 2189–90.

$ 2128. A municipal corporation issuing bonds is as to its creditors a private corporation, and if changed or dissolved or reorganized under a general incorporation law the new body succeeds to the obligations of the old. Ibid.

$ 2129. Where municipal bodies are extinguished, reduced or enlarged, the legislature may apportion the common property and the common burdens, and may, as between the parties in interest, settle all the erms and conditions of the division of their territory or the alterat of the boundaries as fixed by any prior law. Mount Pleasant v. Beckwith, S: 2191-2203.

8 2130. Where a municipal corporation is divided the old corporation owns all the public property within its new limits, and is responsible for all the debts of the corporation contracted before the act of separation was passed. Ibid.

$ 2131. Where a portion of a town was annexed to a city by an act requiring that the city “shall assume and pay so much of the indebtedness of the town of Racine as the lands described in the first section of the act may be or become legally chargeable with and liable to pay,held, that the city of Racine thereby became liable for the debts of the extinguished town of Racine in the proportion described. Ibid. See S 2299.

$ 21:32. Where a new town is created out of a part of the territory of an old one, without providing for payment of debts antecedently contracted, the old corporation retains all the public property not included within the limits of the new municipality, and is liable for all the debts contracted by it before the act of separation was passed. Ibid.

$ 2133. Extinguished municipal corporations neither own property nor have any power to levy taxes to pay debts. Ibid. See $ 2241.

$ 2134. Where a municipal corporation is merged in another, leaving debts unpaid, such debts may be collected by equitable remedies. Ibid.

8 2135. Where judgment is recovered against a municipal corporation, which is subsequently dissolved and another created in its place, scire fucias is the proper proceeding to revive the judgment against its successor. Such a case is distinguishable from scire facias against an heir to subject him to liability for his ancestor's debt. The heir is not liable for the debt, but only the property in his hands, while the successor of the municipal corporation is liable, because it is the same debtor under a different name, and scire facias lies against such successor, although equity is administering the assets of the former municipality, Grantland v. Memphis, S$ 2209–12.

$ 2136. Where a city loans its bonds to its paving contractors, who agree to return them at a specified time, with interest, but fail to do so, having sold the bonds, a court of equity will not decree specific enforcement of the agreement. Verdict and judgment for damages a zainst the delinquent contractors is an adequate remedy, even though no money be made out of the judgment and the city be without means to repurchase the securities. Such judge ment must be for the market value of the bonds, not for their face or par value. City of Memphis v. Brown, SS 2213–23.

$ 2137. Where a city agrees to loan certain of its bonds to its contractors, who are embarrasse I because of the failure of the city to pay them in cash as agreed, and takes from the contractors an agreement that such loan of bonds will be in full release of the liability of the city to the contractors, the city must, in order to avail itself of such agreement as a release of its liability, fully and fairly perform all it thereby contracts to do as to the loan of bonds. If it delay the delivery of the bonds for a long time, and finally withhold a portion of them from the contractors, giving them instead a letter acknowledging the liability of the city to deliver such withheld bonds, this will not be a performance of its agreement that entitl·s the city to take advantage of the release. And the release being but a promise that, upon delivery of the bonds, the contractors will release the city, is not available to it as an accord and satisfaction - such an agreement being required by law to be executed, instead of executory, in order to be effectual. Ibid.

82138. Where paving contractors agree with a city to take payment for their work directly from the abutting lot owners upon the streets paved, the city guarantying payment to the contractors by the lot owners, the city will be liable on its guaranty even though it be sub

sequently decided by the courts that the lot owners are under no legal liability to pay for the paving opposite their respective lots. Ibid.

$ 2139. Where a city agrees to pay for paving in its bonds, but subsequently modifies its agreement, with consent of its contractors, so as to provide for their payment by abutting lot owners, such moditication of the contract is merely a substitution of a new mode of pay. ment. It does not release the city from its primary obligation to pay in case payment is not made by the lot owners. Ibid.

$ 2140. Where a city agrees to provide a sinking fund for the payment of its bonds, but fails to do so, damages will not be allowed as representative of the difference between what the bonds were actually worth and what they would have been worth, in the opinion of bankers and other financial experts, had the sinking fund been provided as agreed. Such damages are too uncertain, shadowy and unsubstantial to be estimated. Ibid.

$ 2141. Where a city agrees, in case owners of lots abutting on a street about to be paved fail to pay the contractors within a given time, that the paving bills are to be placed in the hands of the city attorney for collection, no authority exists in the contractors, or the mayor or the city attorney, to bind the city to pay for special counsel employed to make such collections, in case the city attorney be too much occupied with other city business to give his attention personally to the collection of the accounts. Ibid.

$ 2112. Property held for public uses, such as public buildings, streets, squares, parks, promenades, wharves, lanling places, fire engines, hose and hose-carria zes, engine houses, engineering instruments, and generally everything held for governmental purposes, cannot be subjected to the payment of the debts of a city. Meriwether v. Garrett, SS 2224-37. See $ 2252.

$ 2143. The private property of individuals, within the limits of a municipal corporation, is not liable and cannot be subjected to the payment of the debts of such corporation, except through the levy and collection of taxes upon such property. Ibid.

32144. Although the legislature may repeal the charter of a municipal corporation, its lawful contracts made while it was in existence may be subsequently enforced against property held by it in its own right. Ibid.

$ 2145. Upon the dissolution of a municipal corporation a court of equity will lay hold of and apply to the payment of its debts the following property, namely: The private prop-rty of the corporation, that is, such as it held in its own right for profit or as a source of revenue, not charged with any public trust or use; and funds in its possession unappropriated to any specific purpose. But a court of equity cannot, upon the dissolution of a municipal corporation, lay hold of and apply to the payment of its debts property held by it in trust for a pr.vate charity, or in trust for the public, such as streets, wharves, cemeteries, hospital, court-houses and other public buildings, for in these the corporation has no proprietary rights distinct from the trust to the public; nor are taxes previously levied but not collected, on the dissolutioa of a municipal corporation, such property as a court of equity will lay hold of and apply to the payment of its debts, unless it be taxes which the municipality is under the obligation of a contract to levy and collect. Ibid.

$ 2146. Batture property in New Orleans, being held by the corporation for public purposes, and the ground rents thereof, being part of the public revenues, cannot be levied on or sold. Klein v. New Orleans, $ 2239.

$ 2117. The water-works of a city are not liable to be sold under execution for its ordinary debts. New Orleans v. Morris, SS 2239-40.

$ 2145. A statute exempting shares of a city in water-works. used for its supply of water, from execution, is not unconstitutional, and impairs no obligation of any contract. Ibid.

[NOTES. - See SS 2241-2318.]


(8 Wallace, 575-587. 1869.)

Opinion by Mr. JUSTICE SWAYNE.

STATEMENT OF Facts. This case is brought before us by a writ of error to the circuit court of the United States for the district of Iowa.

The case as presented in the record is as follows: Upon the petition of the relator an alternative writ of mandamus was issued to the defendants in error, wherein it was set forth that it had been represented to the court that the relator, on the 16th of May, 1867, recovered a judgment against the city of Muscatine for the sum of $57,615.16, with interest at the rate of seven per cent. per annum, upon which judgment an execution had been issued and returned “no property found;" that the business of the corporation was managed by the mayor and aldermen, whose duty it was to cause its taxes to be levied and collected, and to provide for the payment of all judgments recovered against it; that this judgment was for interest on certain bonds executed by the city in 1854; that it was the duty of the mayor and aldermen to provide for the payment of the interest as it fell due; that it was their duty to lery and collect taxes and pay such judgments when recovered; that a demand had been made on the mayor and aldermen to levy and collect the taxes necessary to pay this judgment, interest and costs; that they had refused and denied their authority to do so; that the city has no property liable to execution; that by the laws of Iowa, when the debt was created and when the judgment was recovered, the public property of the city and the private property of its citizens were exempt from levy and sale to pay this debt and judgment, but that it was made the duty of the mayor and aldermen, as early as practicable after it was recovered, to levy a tax sufficient to pay the judgment, with interest and costs; that they had refused to perform that duty, and that the relator was without other adequate remedy at law. The mayor and aldermen were therefore commanded forth with to levy a sufficient tax on the taxable property of the city, for the year 1867, to pay the judgment, interest and costs, and to pay them, or to appear and show cause why they refused to do so.

The defendants in their turn set forth: (1) A denial of tho duties alleged to rest upon them. (2) That under the laws of Iowa they are not permitted to levy or collect a tax exceeding in amount one per cent. upon the taxable property of the city for all purposes in any one year; that this amount has been levied for the year 1867; that a part of it has been collected and a part is delinquent; that the entire amount collected has been expended for the necessary current and incidental expenses of the city, and that the entire amount levied and collected for the year 1868 will be needed for the same purposes for that year, and that those expenses are a paramount lien upon the fund.

Other matters are set forth in the return which it is not necessary particularly to mention. The plaintiffs demurred to the return. The court overruled the demurrer. The plaintiffs elected to abide by it, and judgment was entered against them.

By the statute of Iowa of 22d of January, 1852, entitled "An act to amend the charter of the city of Muscatine, approved February 1, 1851,” it was enacted that an assessor should be appointed, whose duty it should be “to make an assessment of the property of the city subject to taxation, and upon whose assessment the council may levy a tax of not exceeding one per cent. upon the value in any one year.” This statute was in force when the writ was issued and when the return was made. If there were no other statutory provisions bearing on the subject, it would be conclusive in support of the judgment rendered by the court below. The cole of 1860, chapter 110, title “ Execution,” declares as follows: “Sec. 3274. Public buildings owned by the state, or any county, city, school district, or other civil corporation, and any other public property wiich is necessary and proper for carrying out the general purpose for wbich any such corporation is organized, are exempt from execution. The property of a private citizen can in no case be levied upon to pay the debt of a civil corporation.”

“Sec. 3275. In case no property is found on which to levy, or which is not

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