Page County v. The American Emigrant Company.

or for making railroads through the county or counties to which such lands belong." See Revision, Sec. 986, as amended by chapter 77, Laws of 1862.

The contract provided that the defendant should make "such public improvements for the county as by law the same may be devoted to, the county to furnish specifications for said work and improvements." Here the contract devotes the land to the defendant, for the purpose of carrying out or assisting in carrying out the very purposes named in the statute, to be specified by the county. The agreement is to the effect that the lands and fund shall be devoted to some of the purposes specified in the statute, to be determined by the Board of Supervisors of the county. We think the contract in this respect clearly complies with the statute. The provisions referred to limited the use of the lands or their proceeds to the objects named in the law; these were to be made specific by the county authorities. In such case no authority was conferred to devote the lands or fund to any other than lawful purposes. It was as certain as if the particular improvement had been named in the contract, for that is certain which can be made certain.

VI. In respect to the claim of the plaintiff that the contract should be rescinded because of frauds committed by the defendant and its agents, in the procurement of the agreement, we merely say, that after a very careful reading and examination of the evidence we fail to discover any proof of fraud or bad faith whatever, on the part of the defendant or any of its agents, touching the making of the contract.

7. CONTRACT:

formance:

VII. In respect to the claim of the defendant for a specific performance of the contract, by the delivery of a conveyance to the defendant of the land in controversy, we specific per- are of opinion that it is entitled to a decree swamp lands. therefor. The proof shows that in pursuance of the contract, recognizing it as valid and binding, the county executed a deed, received the consideration money agreed to be paid, ordered the deed to be recorded and delivered to the defendant upon the execution of a mortgage by the latter for the fulfillment of the contract on its part, and placed this deed

Page County v. The American Emigrant Company.

in the hands of the agent of the defendant for delivery to its chief officer, upon the making of the mortgage. As we have already seen, the only condition precedent to the making and delivery of the deed had already been performed by defendant in the payment to the plaintiff of the sum of $2,500.00. All the money to be paid in any event, under the contract, had been fully paid before the execution by the county of a conveyance, and it had no right to demand the execution of a mortgage as a condition to the delivery of the deed. The defendant became entitled to the delivery of the deed upon request, after having paid this sum of money. This sum of money, however, was only a part of the consideration already paid by the defendant for the land, etc. It had expended, as we have already seen, large sums of money, and devoted much time and labor by its agents in obtaining the recognition of the claims of the county by the Federal authorities. The defendant has, in all respects, fully performed its contract so far as to entitle it to a conveyance of the land under the contract. The judgment of the court below will be reversed, plaintiff's petition dismissed on the merits, and a decree entered requiring plaintiff to specifically perform its contract by executing a proper conveyance.

Appellant may have final decree in this court, if it so elects, within ten days from the filing of this opinion.

REVERSED.

The City of Burlington v. The B. & M. R. R. Co.

THE CITY OF BURLINGTON V. THE B. & M. R. R. Co.

1. Taxation: ACTION: MUNICIPAL CORPORATION.

2.

3.

An action at law can

be maintained by a city for the recovery of municipal taxes upon the property of a railroad, notwithstanding the legislature may have provided a special remedy therefor. Following The City of Dubuque v. The Ill. Cen. R. Co.. 39 Iowa, 56. MILLER, CH. J., and COLE, J., dissenting.

-: STATUTE OF LIMITATIONS. Recovery by municipal corporations, for taxes becoming delinquent more than five years before the commencement of the action, is barred by the statute of limitations.

Argument 1.-When a city lays aside its sovereignty, and places itself in the position of a contracting power, it subjects itself to the laws controlling the natural person.

Argument 2.-Taxes are debts, recoverable like any similar obligations, and subject to the same conditions. Sec. 9, of Chap. 26, Laws of 1872, releasing railway companies from the payment of such debts, is unconstitutional and void.

-: PENALTIES: MUNICIPAL CORPORATIONS. Municipal corporations, when clothed by charter with the power to impose taxes, may prescribe penalties for the non-payment of such taxes when they become due, and such penalties become a part of the debt created by the tax, and are collected in the same manner.

Appeal from the Des Moines District Court.

MONDAY, JUNE 21.

Action to recover certain city taxes levied by plaintiff upon property, real and personal, of defendant, situated within the corporate limits of the city. The cause was submitted to the court upon an agreed statement of facts, and certain questions arising thereon were, by agreement of parties, presented for decision. There was a judgment for defendant, and plaintiff appeals.

A. H. Stutsman and Charles H. Phelps, for appellant.

THE question whether an action at law will lie for the recovery of taxes is not a jurisdictional one, which may be raised at any stage of the proceedings. (The City of Davenport v. The C., R. I. & P. R. Co., 38 Iowa, 633; The City

The City of Burlington v. The B. & M. R. R. Co.

of Dubuque v. The I. C. R. Co., 39 Iowa, 56.) An issue not made by the pleadings will be disregarded by the court. (1 Chitty, 479-481.) A defense not pleaded is not ground for arrest of judgment. The demurrer by plaintiff to the answer does not reach back to the petition. The common law rule, upon which this claim is based, is not applicable to pleadings under the Code. (Cano v. Gilbreth, 4 Gr., 453.) A tax is a debt. It is immaterial whether the contract be with a private person or with the government; a debt is thereby created that becomes a common law obligation. (Shaw v. Orr, 30 Iowa, 355.) A tax is a debt, taking precedence over all others. A mere provision for collecting taxes by distress and sale is a cumulative and not an exclusive remedy. It must clearly appear that the summary method is intended to be exclusive. (Dillon on Mun. Corp., Sec. 653.) The right of the government to collect its revenues by ordinary proceedings will not be taken away by mere implication.

Municipal corporations are clothed with the common law powers necessary to the maintenance of local government, within the limitations imposed by their charters. In the absence of such a limitation, they possess the right of enforcing the collection of taxes by actions at law, the same as the state itself. The charter of the city of Burlington does not expressly, or by implication, deprive the city of the power to sue for and collect its general taxes in the same courts and in the same manner in which other claims are enforced. If it be true that an action will not lie for taxes, it follows that for twenty-three years the city had the right to levy taxes, but no authority to collect them, and that the authority granted by the charter to collect taxes was a nullity.

The statute of limitations has no application to ordinary. municipal taxes, levied to defray the current expenses of the city. (Magee v. Commonwealth, 46 Pa. St., 358.) The cases cited in support of the adverse doctrine relate to municipal corporations, not as governments, but as parties litigant.

A body politic acts in two capacities. First. As a soveign power, controlled only by the constitution or by its charter; Second. As a legal person, capable of holding

The City of Burlington v. The B. & M. R .R. Co.

property, and of contracting, and being contracted with. In the first, it is supreme; in the second, its rights and liabil ities are governed by laws applicable to natural persons. The statement that "municipal corporations are subject to the statute of limitations, in the same manner and to the same extent as natural persons," means that in all matters of contract, or involving the right of property, they are governed by the laws relating to persons.. But taxation involves the exercise of the highest soverign power. Limitation acts are statutes of repose; they were never intended to interfere with the sovereign power of the state. The maxim nullum tempus occurrit regi, applies to all efforts of the government to enforce the duties of the subject.

Sec. 2538, declaring that the statute shall "be applicable to all actions brought by or against all bodies, corporate and politic," would apply equally to the state, which is a "body politic." But the statute does not run against the state. (Des Moines Co. v. Harker, 34 Iowa, 84.) Express words are necessary to bring the state within the operation of the statute. (U. S. v. Hoar, 2 Mason, C. C. R., 314; Johnson v. Irwin, 3 Sergt. and R., 291; Lessee v. Saunders, 1 Bay. 8 C., 30; U. S. v. Kirkpatrick, 9 Wheat., U. S., 735; Dillon on Mun. Corp., Sec. 529.)

The statute is intended to apply only to ordinary debts, incurred between contracting parties, and not to bar state, county or municipal taxes.

The City of Burlington can impose penalties for delinquent taxes. The power to levy and collect taxes carries with it the power to use ordinary reasonable means commonly employed to enforce their collection. It cannot be said that the rate charged upon delinquent state taxes is unreasonable when applied to municipal taxes. The obligation to pay them is the same, and the taxpayer can escape the penalty by paying his taxes. Some constraint is necessary to "carry into effect" the tax ordinances of the city.

It is presumed that when the charter is silent respecting taxation, the analogies drawn from the general statutes of the state ought to be adopted by the corporation in the execution