Seevers, J.
i. bract toe ñndmgeo£' i'act: delectivo record.
I. The abstract fails to state that it contains all the evidence. We therefore are unable to say that the real estate described in the petition is -taxable for city purposes. The evidénce before us tends-to , 1 1 . , show that it was used solely for agricultural pur
poses, and that no municipal benefits were conferred in consideration for the taxes imposed. It therefore must be presumed that the court was warranted in finding that the real estate was not taxable for city purposes.
„ 2. taxes: Serprote™' recovery,
II. There was no distraint or seizure of property, but the taxes were paid under protest, and such fact was indorsed by the treasurer upon the receipt. It is insisted r JPayinerd was voluntary, and therefore there cannot be a recovery. It has been held otherwise in the recent case of
Winzer v. City of Burlin
gton, 68 Iowa, 279. excess of the constitutional limit, and evidence tending to establish this defense was rejected by ° 1
0 J
cour^i anc^ this ruling is assigned as error. Section 3, article 11, of the constitution, provides that “ no county or other municipal corporation
payment under protest to peyomi eone-d imScovery
III. Among other defenses, the defendant pleaded that at the time the taxes were paid it was indebted largely in shall be allowed to become indebted, in any manner or for any purpose, to an amount in the aggregate exceeding five per centum of the value of the taxable property within such county or corporation. * * *” It is insisted that when the taxes were paid an indebtedness was created,
(Lauman v. County of Des
Moines, 29 Iowa, 310,) and therefore the constitutional inhibition applies. Is it true that an indebtedness was created, as contemplated by the constitution ? In the discussion of this question it’ must be assumed that the taxes were levied without authority, and that the city had no legal right to receive the money, and appropriate it for any purpose whatever. It must be further assumed that the plaintiff paid the taxes under legal compulsion. It is perhaps true, in a technical sense, that, to enable one person to recover of another in an action at law, there must exist a debt or valid obligation which arises under an express or implied contract, or by reason of a tort or wrongful act. But can it be said, when a city negligently
fails to keep its streets in repair, and a person thereby suffers an injury, that there cannot be a recovery because the city is indebted beyond the constitutional limit? As we understand, it has been held that such a defense cannot be interposed.
Bartle v. City of Des
Moines, 38 Iowa, 414. In the cited case there was an omission to do an act enjoined by law; in the present case the city did an act it had no right to do, and by wrongful action received or seized money, the property of the plaintiff. It did not become the money of the city by such wrongful seizure or enforced payment. 'The money belongs to the plaintiff now as fully as it did prior to the payment. The plaintiff is seeking to recover his own property, which is held by the city for his use. There cannot be' a debt or debtor unless there is a creditor; and while, in a certain sense, the plaintiff may ' be regarded as the creditor of the city, we do not think he is such in contemplation of the constitution. He is not a voluntary, but an involuntary, creditor. He became such by compulsion. The constitution provides that the city cannot become indebted in any manner. This implies an assent on the part of the creditor, and thus it is that the prohibited indebtedness is incurred; that is, it is created by the voluntary act of both parties. Such an indebtedness cannot be contracted if the city is in debt beyond the constitutional limit. It may be assumed that a person can protect himself by due inquiry from entering into a contract whereby he becomes the creditor of the city, when indebted beyond the constitutional limit; but he cannot fully protect himself in the case at bar. It is true, he can refuse to pay the taxes, and, if his property is distrained, he could, it will be assumed, defeat the tax by an appeal to the courts. But when the tax is levied, or within a brief period thereafter, an apparent lien is created on his property, and thereby his title is clouded. This cannot be removed except by an action, which takes time. In the mean time he may be unable to sell or mortgage his property for legitimate purposes. The only efficient and sufficiently
speedy remedy in such case may be the payment of the taxes. Strictly speaking, an indebtedness cannot be created except by contract, either express or implied; and we feel constrained to hold that the indebtedness prohibited by the constitution is such as is created by the voluntary action of both the debtor and creditor.
We have had occasion to consider the provision of the constitution under consideration in several cases. They will be found cited in a note on page 1193 of Miller’s Code. In all of them, except
Bartle v. Des
Moines, before cited, bonds were issued by the corporation, and sold on the market, or an indebtedness otherwise incurred, which was held to be within the constitutional inhibition; and this is true as to the following cases, cited by counsel for appellant:
Law v.
People, 87 Ill., 385;
Fuller v. City of
Chicago, 89 Id., 282;
Buchanan v. Litchfield,
102 U. S., 278;
Litchfield v. Ballou,
114 Id., 190; S. C., 5 Sup. Ct. Rep., 820.
The judgment of the circuit court is
Affirmed.
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