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BUTZ v. CITY OF MUSCATINE.

December 1, 1869

BUTZ
v.
CITY OF MUSCATINE.



In error to the Circuit Court of the United States for the District of Iowa. The case was this: A code of the State of Iowa, adopted in 1851, and known as the code of that year, after enacting that neither the public property of any city corporation necessary to carrying on the general purposes for which the corporation was established, nor the property of private citizens shall be levied on to pay the debt of such corporation, goes on to enact that if any corporation against which judgment has been obtained has no property which can be seized, 'a tax must be levied on as early as practicable sufficient to pay off the judgment, with interest and costs.' And by the code a failure on the part of the officers of the corporation to levy such a tax in the case prescribed, makes them personally responsible for the debt. With this code in force, the city of Muscatine was incorporated; and in 1852, it was enacted specially in reference to that city, by an amendment to its charter, 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.' With this provision in force, the city, which under its charter had 'power to borrow money for any purpose in its discretion,' &c., did borrow, under that power, in the year 1854, money, issuing bonds, of which one Butz, of Pennsylvania, bought a large amount. In 1860, the State of Iowa re-enacted the provisions of its already mentioned code of 1851, on the subject of executions. But on a question whether those general provisions of the code applied to a case like that of the charter of Muscatine, where there was a limitation about taxes, the Supreme Court of Iowa determined, more than once, that it did not.*fn1 With these State decisions unquestioned in any way in the State courts, Butz, whose bonds were unpaid, and who had a return of nulla bona to an execution against the city of Muscatine, after judgment had by him on them against the city, applied in 1867 to the court below, the circuit Court of the United States for Iowa, for a Mandamus against the city officers to levy, under the provisions of the code, a tax 'sufficient to pay off the judgment, with interest and costs.' The city, relying on the limitation in its amended charter, and on the decisions of the Supreme Court of the State, made return, that under the laws of Iowa they were not permitted to levy 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 had been levied for the year 1867; that a part of it had been collected, and that for a part the taxpayers were delinquent; that the entire amount collected had been expended for the necessary current and incidental expenses of the city, and that the entire amount levied and collected for the year 1868 would be needed for the same purposes for the year, and that those expenses were a paramount lien upon the fund. The plaintiffs demurred to the return. The Circuit Court overruled the demurrer. The plaintiffs elected to abide by it, and judgment was entered against them. The questions now here were–– 1. Whether the construction given by the Supreme Court of Iowa to the provisions of the codes and to the charter of the city was one which in the judgment of this court could, in itself, be sustained? 2. If not, then–since the effect of the decisions in question was to deprive creditors of the only practicable means of enforcing against certain corporations which had made them, contracts solemnly entered into by those corporations prior to the date of the decisions–whether this was a case where the Supreme Court would adhere to its rule, confessedly obligatory in most cases, that it would follow, irrespectively of what it might itself think of the correctness of such decisions, the decisions given by the State courts in the construction of their own State statutes; the question here more particularly arising on a writ of error in ordinary course to a Circuit Court of the United States, and not on a writ to the Supreme Court of the State, in which case this court has power by the Judiciary Act to re-examine and reverse any decision of such a court, where there has been drawn in question the validity of a statute of or an authority exercised under any State, on the ground of their being repugnant to the laws of the United States, and the decision has been in favor of such their validity.

The opinion of the court was delivered by: Jr. Justice Swayne delivered the opinion of the court, first stating the case.

Mr. Grant, for the creditor, plaintiff in error; no counsel appearing for the city of Museatine.

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 16/100, 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 levy 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 forthwith 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 return set forth––

(1.) A denial of the 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 code 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 which is necessary and proper for carrying out the general purpose for which 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 exempted by the last section, or if, after judgment, the creditor elect not to issue execution against such corporation, he is entitled to the amount of his judgment and costs in the ordinary evidences of indebtedness issued by that corporation; and, if the debtor corporation issues no scrip or evidence of debt, a tax must be levied as early as practicable, sufficient to pay off the judgment with interest and costs.'

'Sec. 3276. A failure on the part of the officers of the corporation to comply with the requirements of the last section, renders them personally responsible for the debt.'

These regulations were contained in the code of 1851, and have been in force ever since. They were re-enacted in the code of 1860, and have a controlling effect upon the determination of this case. The limitation in the act of 1852, touching the exercise of the power of taxation by the city council, applies to the ordinary course of their municipal action. Whenever that action is voluntary, and there is no debt evidenced by a judgment against the city, to be provided for, one per cent. is the maximum of the tax they are authorized to impose. But when a judgment has been recovered, the case is within the regulations of the code. Those provisions are then brought into activity, and operate with full force, until the judgment, interest, and costs are satisfied. The limitation in the act of the 1852 has no application in such cases, and imposes no check, if larger taxation be necessary. The contingency is one not contemplated, and not provided for by the act of 1852. If the legislature had intended to qualify the requirement prescribed by the code, it is to be presumed it would have done so, in language as clear as that which it has employed to express the duty to be performed. It leaves no room for doubt or construction. Nothing can be more simple and direct than the terms in which the levy of a sufficient tax is enjoined. The extent of the necessity is the only limitation, express or implied, in the code of the amount to be levied. We cannot interpolate a ...


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