Britton v. Platte City

4 F. Cas. 189, 2 Dill. 1

• Court: U.S. Circuit Court for the District of Missouri
• Decided: July 1, 1871
• Status: Published

Opinion

DILLON, Circuit Judge.

The substantial question argued and which counsel wish to have decided is, whether the city has the' power to levy or can be compelled to levy any other than the general tax of one-half of one per cent. The city maintains that this is the limit of its power, and that having already levied this tax to the full extent of the charter rate, it has discharged its duty and its whole duty, and cannot therefore legally be compelled to do more. On the other hand, the relator claims that under the provisions of the general statutes of the state mentioned in the statement of the case, he is entitled upon the return, to an order commanding the city “to levy, assess, and collect a special tax” to pay his judgment and costs. That the general statute applies to this city has not been denied; but it is insisted by the counsel for the city that it does not enlarge its taxing power as prescribed and contained in its charter. If the charter stood alone and contained a fixed limitation on the rate of the only taxation authorized, it might be true that the rendition of judgments for torts could not have the effect to enlarge the taxing power or abrogate the restriction on that power contained in the charter. But that is not this case. Here the charter provides for a general tax for ordinary municipal purposes, and the general statutes provide in addition a special remedy for judgment creditors, to-wit: a special tax. to be levied and collected under the direction of the court of record which rendered the judgment. Gen. St. 1865, c. 160, §§ 77, 78. When it is considered that this is a special tax, that it is to be levied and collected under the order of the court, it is clear that it is a tax other and different than the general tax provided for in the charter.

It is admitted that the power to tax or to authorize the levy of taxes must be plainly conferred. But when, as here, the legislature has in terms enacted that the court may “order and compel” the officers of a city “to levy and collect a special tax” for a specified purpose, and makes it criminal in them to neglect or refuse to do so, the authority to execute the order is clearly granted. The intention of the legislature that a tax might be levied is very much more clear than in the cases from Iowa to which reference has been made. U. S. v. Burlington [Case No. 14,687]; Clark v. Davenport, 14 Iowa, 494; Butz v. Muscatine, 8 Wall. [75 U. S.] 580. The demurrer to the return is sustained and a peremptory writ ordered. Judgment accordingly.