UNr.r,ED STATE:s tI. TOWN OF CICERO.
83
after he had acquired possession of the estate, began at on6e to'lay, out money in improving the property, which he did quite extensively. The distribution of the money paid by him ,to the heirs was made under a mistake of law, due to the common ignorance of all the parties concerned in the settlement. Justice and equity would appear to require a redistribution, but thif'ltcannot be ordered under the present proceedings; llnd whether, nt this late day, the complainant could successfully demand a contribution, from each one of the heirs who was overpaid, to make good her loss; iell question not now before the court. be entered dismissing the bill.
a.
UmTED STATES
rel.
SPITZER
TOWN OF CICERO.
,.Oircuit, L
In!Iiana.December 81, 1889.)
... BAME-IHpuimPOWEB. " "
, Rev.St. Ind. 1881, § 3388, cl. 15, !lOnfersupon lncorporated towns tbe power "to levy and collect annual taxes, not to exceed fifty cents on the hundred dollars valuation, 'and twenty-five cents pOll-tax, on all :property subjebt, by law to 86Qtion provides t.hat "tpe board of trustees shalll the third 'l'uesday in May of eaeh year, * * · dete'rmine the amount or general tax for the current year;" and section 8849, that, "when the assessment roll shall have been corrected and trustee.s sNl:lllevya tax upon the taxable property of to, sUQli an amount as they may deem necessary," etc. HeW., that these prOVIsIons, being, 'Orilrinal1y all' parts of' the same enactment, were to be read ,together, and, while unaer section8S49 the, ,boaI'd sPall annually lev1: a tax ,to such Bon amount as necessary, the be w:ithin the limIts prescribed In clause 15 of sectIon . ' , SllIE.' , The power given bi clause 17 of section 8833, "to complete school.houseB nawlnprogressof erectiun; and provIde fol' the paywent of the same, to erect. or proV'ide8!1ch school-houses as may be necessary for the use of the schools of the town, to kee() them in repair, " etc., .is not inconsistent with the limits prescribed' in clause 15 of saId Secti!ln. , A grant'ofpower to a municipal cOrpOration to incur Indebtedness does not neoQlU'liYwiJ;bit,s,u implication of power to levy taxes s\lffic1ent to meet the 0llligation when TO :1o(.i.:n LEVy---RIGHTS Oll' BONDHOLDERS. " The fact :that In some of the years past a, town has omitted to levy the special tax prOVided for in a act. to pay tbe bOnds of the town, does n,ot give the bondholders therigbtto have such omissiOns made good by mandamus, i:t thoyaoquiesce in the omission to make the levies. ' ,
"
6.
SAMB-WAIVEJlIN:BoND Oll' APPB4ISEMENT LAWS.
A to pay contained in munlcipaI bonds, relief the valuation or apprQ1sement laws of the state," is a mere waIver by the (lebtor: of the benefit of vaJ.uation 1)1' appraisement in case the Obligation shall be enforced byexecutlon at lawband cs,unot be construed to require levies for payinent'of the bonds to be made up n the same valiJation that existed in the town when the !,ssued,
e.SAMlll-REOITALll IN
Recitals In municipal bonds are binding only In respect to matters of fact, and noUn respect io..m8tmrs of law, of which all are bound to talte cognizaJlee.
BONDS-LAW AND FACT.
,
'
In Equity. Application for mandamus. Sander8
L·. o.. CWff(JJ'd ,4ml
,BtlWers,:' for relators.
JQrdefeQda,nt.
DDERAL ·REPORTEni
vol.
41.
WOODS, J. The relators have a judgment for $3;495.66 and costs against the town of Cicero, rendered on the 12th day of December, 1888, and now ask an order to compel the levy of taxes, with the proceeds of which the judgment shall be paid. The judgment referred to was ren" dered upon bonds of the town dated March 1, 1877, which contain this recital: · "This bond is one of a serles of $13,358.53, authorized by an ordinance passed by the boal"d of. trustees the 17th day of¥ebruary, 1877. in pursuance of an act of the state of approved March 8th, 1873. The authority will also be found in the Revision of 1876: 'An act to authorize cities and towns to negotiate and sell bonds, to procure means with which to erect and complete unfinished school buildings, and to purchase any ground and building for school purposes, and to pay debts contracted for such erection and completion. and purchase of buildings and grounds, and authorizing the levy and collection of an additional special school tax for the payment of such bonds.' ..
This,teoital refers to a single act of the legislature,-that approved March 8, 1873,-whichisfound in the Revision of 1876, vol.l, pp. 343345. It authorizes and requires an addItional tax levy, which "shall not, in anyone year; ex.ceed fifty cents on anyone hundred dollars of taxablepl'operty, and one dollar or) eiJ.ch poll."· This series of bonds, it appears; was issued for the purpose of raislng meatls with which to pay a out l;>ythE) town in 187'2, containing the following recital: "TbisPol1l:l is one ofaserles of $10,OOO,'authorized by the ,said town by an ordinance passed by the board of trustees thereof on the 11th day of December, 1871; and by an amendment thereto passed on the -.-- day of February, 1872, for the purpose of erecting school.houses in the said town, and in pursuance of an act of the general assembly of the state of Indiana approved March 11th, 1867, and an ,amendment thereto approved May 15,1869, authorizing cities and towns to negotiate and sell bonds for the purpose of erecting school bufj<:lings," etc. No objection has been made, or probably could be, to the Validity of either series of bouds,and reference to their origin was nec(lssaryonly for the purpose of determining what powers of taxation the town has in Qrder to procure means for their paYn;leJ;lt., By section 27 ef the act of J9ne H, 1852, the same as section 8342 of the Revised Statutes of 1881, tAe gener;:tl power of towns to borrow money is put under certain restric'tions; and for debts created in the manner prescribed in that section it "the tru13teesshall ad<i to the tax. duplicate ofeaclryeai, succ'essively, a levy sufficient to pay the annual interest on such debt or loan, with.an additioh ofnpt less thanfivecentson the hundred dollars to create a sinking fund for the liquidation of the principal.thereof." But the power of taxation thus conferred is not available to the relators, their der,nand later enactments, by force of which, in respect to the subjects embraced,inthern, section 27 (3342) was repealed. Clark v. Noblesvule, 44 Ind. 83; Merrul v. MofJ.!icel1.c, :!2 Fed. Rep. 589. ,,' , The inquiry, therefore, must be, what powers outside of this section (27) has the town to levy taxes for tla:e'p'ayment of this demand, which
UNITED STATES II. TOWN OF CICERO.
it has failed and refused to employ? In the original act for the incorporation of towns, under the constitution of 1851, approved June 11,1852, (1 Revision 1876, p. 874,) the express powers conferred are enumerated in section 22, and among them the following, which are pertinent here: "Fifteenth. To levy and collect annual taxes, not exceeding fifty cents on the hundred dollars valuatioD, and twenty-five cents poll.tax, on all property . subject by law to taxation." "Sec. 30, [of the same act.] The i)oard of trustees shall, before the thIrd '.ruesday in May of each year, '" ... * determine the amount of general tax for the current year." "Sec. 33. When the assessment roll shall have been corrected and completed, the trustees shall levy a tax upon the taxable property of said town to such . an amount as they may deem necessary," etc. By the act of March I, 1877, section 22 was amended to read as it now appears in section 3333 of the Revised Statutes of 1881 ,---one of the amendmentsconsisting in an addition to clause 15 of words conferring a power to tax dogs,and not otherwise changing the clause,---'but sections 30 and 33, appearing in the Revised Statutesof1881 as sections 334811nd 3349, remainuncbanged. It is conceded that the tax of 50 cents on the $100 vall1ation,arid the poll and dog taxes authorized by clause 15 oiseetion>22,C3333, Rev. St.,) and the special tax authorized by theaet 'of March 8, 1873, under which the bonds were Jssued upon which the relators obtained judgment, have been regularly levied and collected ; but the relators contend that,under sections 3348 and 3349, the trustees have a general power, in their discretion, limited only by the necessities of the situation, to make levies for the payment of valid indebtedness.· The court is notable to adopt this construction of the statute.· If there were any inconsistency or conflict between clause 15 of section 3333 and sections 3348 and 3340, the first, as it stands in the Revised Statutes, is the later enactment, and consequently controlling. But there is. nocontlict. These provisions, being originally all parts of the same enactment, were to be read together, and the subsequent amendment· of section 22 (now 3333)does not affect that:proposition. Accordingly, while, under section 3349, the board shall annually levy a tax * * * to such an amount as may deem necessary," the levy must be within the limits prescribed in the fifteenth clause of section 3333.1 Reference has been made in argument to the power given, in clause 17 {)f section 3333," to complete school-houses now in progress of 'erection, and provide for the payment of the same, to erect or provide such schoolhouses as may be necessary for the use of the schools of the town, to keep them in repair," etc.; and it is argued that these powers, given in unrestricted terms, llre inconsistent with the proposition that the entire -taxing power was intended to be confined to the limits prescribed in the fifteenth clause. l3ut this could be said with equal force in respect to the' other powers granted, the exercise of which would involve expenditure. For instance, the power given in the eighteenth clause, " to construct all ' etc. If the limitation in clause 15' necessary wharves and means anything, it means that all the powers granted in .that act must be . to that limitation, or by means of credit obtained
86
FEDERA.I,
REPORTER,"vol; 41; ,
under section 27, (3342,) which, as already explained; is not applicaD1& to the relators' demand ·. It is not true, as counsel contend, that n' grant, of power to a municipal corporation toincur indebtedness necessarily carries with it an implication ,0Lp'Owertolevytaxes sufficient to meet,theobligation when due. It is 'certainly not so when, as in this case, ,the' general taxing power is the act under which the obligation was inGurred <lonfersa Of taxation; alElo limited. The questi<;m is fully covered by the decisions of the supreme court in U. S. v. Macon GJ.,99U. S. 582, andRallB OJ. Gourtv. U. S;,105 U. S. 733. Suchsituations are often met, by new loans, under a power granted to renew or to fund existing liabilities, and it may be that the defendant town has such power,--a question which does not arise here,-but that it has npUhepower of taxa.tion asserted by therelatoTs ,seems clear. ,The recital in the bond,:it is contended, constitutes an estoppel against thedenilil ofauthoritYi ,but if the recital purported to contain an assertion ofauthoritYtexcept as,given.in the, act referred to,-and it certainly does not purport to:. assert more,-it would be ineffective. Recitals in such instrnmentscan' be only in respect to, matters of fact, and not in respect to matters, of law, of which all alike are bound ,to take cognizance. Authority in SUPP!>Tt of this proposition need not be cited; certainly none can be cited against it. lt iSJlUgge&ted that in some of,theyears past the town has omitted to levy the special tax providedl for in the act of 1873, and that the relators have the right now to havEdhose omiEisions made good.! do not find that the recotd presents this question, but in the absence of a showing that the omissions .were not acquiesced in by the creditol'at the time, and timely steps taken to enforce literal compliance with the statute each year, which were defeated byreaspn of the" delays of the law "or other cauee beyond the controlQf the cre<:iitor, such remedy, as it seems to me, is not allowable, even if it could be had under any circumstances. The gelleral rule seems to be that:the:courts will compel, and can com" pel, the exercise of only the powers given by statute, and the express words of this statute arethatthe'special. tax" shall not in any year exceed 50 cents,," etc. i'aodso it would seem that ifa creditor in any Yflarpermits,-certainly,' I think,· if .heacquiesces in,-Mtn omission of the levy, there can be no recovery by mandamus of the lostground. Theobligatiolls upon which the relators obtained judgment contain a,. promise to.pny, h withoutl'elieffromthe valuation or.appraisement laws oftne state of Indiana/and on the strength of this the relators insist that they are entitled to have the tax. levies allowed by law, upon the same, valuation of property which. existed in the town when the bonds were issued. This expreSsion is the,one commonly in promissory notes and other ohligatitms made in Indiana, or with reference to the laws of .the state, whereby the debtor waives the benefit ofvallilation orappraisemant incase the obligation' shall be enforced by execution at law; and liS used in municipal bonds it bftS never been supposed, I think, that the expression had any other significance.' It may be that a sale of mu- .