of the corporation, a change in the State law works a change in the power of the corporation.' But if a special mode is adopted as to a city the rule does not apply, as for instance a charter giving the power of assessing taxes to a board of assessors, and directing that the board of assessors of the city, when satisfied in the manner required by section 9 of Revised Statutes that certain corporations are not in the receipt of any income, or not in the receipt of a net annual income exceeding five per cent. on the capital stock, they shall strike the name of such corporation from the roll. Section 9 provided that when certain officers of the corporation produced an affidavit before the supervisors of the county, showing that it was not in receipt of any profits or income, the name of the corporation should be stricken from the roll, and no tax imposed on it, and that the assessment made on corporations from which no affidavits were received, would be conclusive that they were duly assessed. This section was amended by allowing corporations to show by affidavit before the supervisors that no profits or income were received in excess of five per cent. on their capital stock, after deducting the value of their real estate, which would entitle them to commute their taxes by paying to the county treasurer an amount equal to such five per cent., the amount assessed on their real estate. It was considered that the provision as to the assessors of the city, was to enact an independent rule for city taxation, by laying down a positive mandate, that when certain evidence was furnished to the board they were to strike the name of the corporation from the roll. If the intention of the provision of the charter had been to confer on the board of assessors, as it did on the supervisors, the duty merely of passing on the evidence which corporations might offer in support of their claim to be relieved from taxation, and had been expressed in appropriate language, a change in the statute as to the supervisors would have made a change as to the assessors of the city. Where a charter gives authority "to assess those who hold taxable property within the same," it has been construed to mean all property not exempt from taxation by law, whether the same be taxed by the State or not.3 The rate of taxation on property is often limited in charters conferring the power of taxation. In such cases the limit is not to be exceeded; it is one of the conditions of the grant of the power 1 Dunleith Bridge Co. v. Dubuque, 32 Iowa, 427; Tackberry v. Keokuk, 32 Iowa, 155; Mayor, &c. of Troy v. The Mutual Bank, 20 N. Y. 387; Am. Transp. Co. v. City of Buffalo, 20 N. Y. 388; Lott v. Ross, 38 Ala. 156. 2 20 N. Y. 391. 3 State v. City Council, 10 Rich. (Law), 240; State v. City Council, 4 Strobh. (Law), 561. to tax.1 Where the limit is fixed at two per cent., and the legislature subsequently authorizes a tax for the support of schools, this is not to be considered as a repeal of the limit, and the local authorities will not be compelled to levy such tax, if with the taxes already levied for local purposes it exceeds the limit. But where the legislature limits the amount of the debt which the city may contract for the purposes of the corporation, and by a subsequent act authorizes the city to subscribe for stock of a railroad to a definite amount, the second act does not conflict with the first, and the subscription may be made and the debt incurred. The latter debt was one that the city could not contract under its general powers, but required special authority to contract it. The power of taxation of the city of Little Rock was limited to five mills on the dollar of the value of property. A contract was made with Bagley to pave certain portions of the city, and a local assessment was levied on the owners of abutting property, and collected by the city, but the city failed to pay the amount thus collected to Bagley. The assignees of Bagley obtained judgment against the city in the Circuit Court of the United States, and upon this judgment a mandamus was issued directing the city to levy a sufficient amount to pay the judgment. The city proceeded to include a levy for the purpose in its general levy. The items of that levy included the amount of five mills for United States' judgments, five mills for general purposes, and other amounts raising the whole amount of the levy to fifteen mills. An application was made to restrain the collection of the levy, on the ground that the city had no authority to exceed the limit of five mills. The doctrine was distinctly announced that there was no power to levy a tax in excess of the limit, that the Circuit Court of the United States had no taxing power, and could impart none to the city of Little Rock, but when the city exercised its taxing power in obedience to the mandate of the Federal court it exhausted its power to just the same extent that it would have done had it exercised the power voluntarily. It appeared that the tax of five mills was more than sufficient to pay the judgment in the Federal court, and that a small amount would be left for other purposes. The levy in excess of five mills was restrained, but the residue was directed to be applied first to the Federal judgments. The court remarked that it could not review or reverse 1 Benosit v. St. Louis, 19 Mo. 179; Campbell Co. v. Taylor, 8 Bush (Ky.) 206; Clark v. Davenport, 14 Iowa, 494; Weston v. City of Syracuse, 17 N. Y. 110; Ketchum v. City of Buffalo, 14 N. Y. 356. 2 State v. Mayor, 23 La. Ann. 358. 3 Amey v. Allegheney City, 24 How. 364. the judgment of the Federal court, and that it would presume that the case, as presented before that court, did not show that obedience to its mandate would require a levy in excess of the amount limited by the charter. The result of this decision was to postpone other creditors of the city equally meritorious until another levy could be made, and it shows how tenaciously the courts adhere to the rule that that there is no power to levy beyond the limit fixed by statute. It was admitted in the opinion that as to debts contracted before the limit was prescribed, it had no application, and that the operation of the limit must be prospective as to creditors. The charter of the city of Muscatine limited the rate of taxation to one per cent. on the assessed value of property in any one year. Butz, a creditor of the city, having obtained a judgment against the city, claimed that the limitation did not apply to his case, and that a provision of the statute as to judgment creditors of the city, under the head of executions, allowed a special levy for his debt. Section 3274 of the Code exempts from execution against a municipal corporation all the public property of the corporation necessary and proper for carrying out the purposes of the corporation, and all private property of its citizens. Section 3275 is in these words: "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 did not issue execution against such corporation, he is entitled to the amount of his judgment, and costs, in the ordinary certificate 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." This provision was in the Code of 1850, prior to the act limiting the rate as to the city of Muscatine, and in the Code of 1860, subsequent to that act. The Supreme Court of Iowa, in construing this statute, in 1862, decided that it conferred no independent power to levy a specific tax, and gave no authority to exceed the limit. When the case of Butz came before the Supreme Court of the United States, his debt having been contracted in 1854, before the State courts had construed the statute, that court held that Butz was entitled to all the remedies to enforce his contract in existence in 1854; that such remedies could neither be taken away by statutę subsequently enacted, or judicial decision subsequently rendered; that it would construe the contract independent of the action of the State courts; and proceed 1 Vance v. City of Little Rock, Central Law Journal, vol. 3, No. 26, p. 338. ing to construe § 3275 and the act limiting the rate (1852), they decided that the limit only applied to the ordinary course of municipal action, where that action is voluntary, and no debt evidenced by a judgment against the city is to be provided for; but where a judg ment has been recovered, then the provisions of § 3275 were brought into activity, and operate until the judgment is satisfied. The limitation has no application to such case, and imposes no check if a larger tax is required; the contingency is one not contemplated and not provided for in the act of 1852.1 2 The construction of this statute was again before the court, in a case where the contract arose after the decision of the Iowa courts, that § 3275 did not invest municipal corporations with the power to levy taxes, but merely prescribes duties to be performed by the taxing officers under powers to tax given in other parts of the statutes. In this case they followed the State courts, distinguishing it from the former case on the ground that the contract having been made after the decisions of the State courts, these decisions formed a part of the contract, and being on the construction of a State statute should be followed. But while the decision is placed on these grounds, it is evident from the opinion of the court in that case that the leaning was to follow the Iowa cases in principle. Many difficulties present themselves in the application of the rule as to the limit. If the limit is not to be exceeded, the public property of a municipal corporation is exempt from execution. If the amount of the limit is absorbed by current expenses, the creditor will be without remedy, although the resources of the debtor are ample.3 And, on the other hand, we have seen, in the Arkansas case, that a creditor may absorb all the taxes levied for current expenses, and leave nothing to carry on the local government.1 Closely connected with the question of exemptions are the questions as to the effect of the illegal exemption of property, and the accidental or unintentional omission of property from the roll. It is certainly no defense for a party properly assessed to prevent the payment of what is justly due by him, and when the omission is accidental or unintentional, it has no effect on the validity of the tax roll. "Omissions arising from mistakes of fact, erroneous computations, or errors of judgment on the part of those to whom the execution of the 1 Butz v. Muscatine, 8 Wall. 575, 580, 584, Miller and Chase, JJ., dissenting. 2 Supervisors v. United States, 18 Wall. 71. Swayne, J., in 8 Wall, 581. 4 3 Central Law Journal, 338. taxing laws is intrusted, do not necessarily vitiate the whole tax." 1 What is the effect of an intentional omission? The court in the case of Weeks v. Milwaukee, seemed to think it would vitiate the whole roll. That was a case in which a hotel was exempted from taxation, on the ground that its maintenance was a public benefit in promoting the prosperity of the town, but the exemption was declared illegal. Generally the questions of exemption arise, when the party exempt has been assessed, notwithstanding the exemption granted, by the local government. In such cases the question is easily solved, and it affects only the person in question. But whether the tax officers follow the exemption granted, or of their own motion intentionally omit certain persons or property, the true remedy would be for some citizen who would be injured by reason of the exemption or omission, to apply for a mandamus to compel the taxing officers to perform their duties. This is the proper remedy to compel executive officers to discharge their duties. The party making the application must be a tax-payer, whose taxes will be increased by reason of the exemption.3 Perhaps, also, a court of equity would restrain the tax officers from making out a tax roll containing illegal exemptions granted by the local authorities, if the relief was applied for before the tax roll was completed, or the collection of the taxes commenced, but to hold that the courts would restrain the collection of the whole levy, and set it aside, because of such exemptions or omissions, would be a doctrine fraught with the most serious inconvenience. § 130. Limitations when the Power to Tax is fully conferred.The limitations which we have considered were such as arose from the statute conferring the power, but when the power to tax is fully conferred by statute, and the legislature has delegated the power in the most comprehensive terms, there are still other limitations arising from the fact that the power of the legislature itself is limited. The purpose of every tax must be a public and not a private one. The legislature itself can only raise taxes for governmental purposes, and most of the cases on this subject, which we have heretofore considered in Chapter II, were cases in which municipal corporations made attempts to levy taxes for purposes not public. The acts of the municipal corporations in such cases were declared void, not because 1 Weeks v. Milwaukee, 10 Wisc. 242; Williams v. School District, 21 Pick. 75; Bond . Kenosha, 17 Wisc. 284; Hale v. Kenosha, 29 Wisc. 599; People v. McCreery, 34 Cal. 43; State v. Randolph, 25 N. J. Law, 427; Spear v. Braintree, 24 Vt. 414; Watson v. Princeton, 4 Metc. 599. 2 Dunham v. Chicago, 55 Ill. 357; Merrit v. Farris, 22 Ill. 203. Page v. St. Louis, 20 Mo. 136; 55 Ill. 357. |