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hay peaceably arise in the exercise of power and the transactions of industry."

The Hora Juridica of Charles Butler may then be read with advantage, as throwing much light on the general subject in a pleasing and attractive style.

The Institutes themselves should be then the subject of careful and repeated study. Wherever it is possible, they should be read ia the original. This work must ever be regarded as one of the most perfect specimens of didactic composition which the literature of any age or country has produced. The style of it is admirably. adapted to the purposes of an elementary treatise. Perspicuity is its chief merit, but this has not been attained at the expense either of eloquence or of precision; indeed, it would be difficult to find a more happy medium between prolixity and obscurity. The Latinity is, with very few exceptions, of the purest kind; and those passages are extremely rare in which either the idiom or the taste of a bad school can be detected."

Though a late discovery has stripped Tribonian of the honor of its authorship, and shown that in the main it is a servile copy of the Elements of Gaius, a prior writer, it rather adds to than detracts from its real value, that it belongs to a much earlier and purer age of the law and the language than that of Justinian.

Perhaps if these works be perfectly well mastered, it is as much as can be expected in the early periods of a course of legal study. Afterwards, the Manual of Macheldy, of which there is both a French and English translation, may be read with profit. The great work of Domat, as it is presented in Mr. Strahan's translation, and Mr. Cushing's American edition, may then be recommended. But especially to the student, if a proficient in German or French, will Savigny's Treatise on the Roman Law, as well as his history of that law during the Middle Ages, be found of the greatest interest and use. No works can be studied which will more tend to open and enlarge the mind of the student to some thing like an adequate comprehension of the importance of the study of the Civil Law. G. S.

Circuit Court of the United States for the District of Iowa. January Term 1863.

THE UNITED STATES ex rel. LEARNED vs. THE MAYOR AND COUNCIL OF THE CITY OF BURLINGTON.

The Federal Courts have jurisdiction and power to issue the writ of mandamus to s municipal corporation to compel it to perform its duty, although such duty is created and enjoined by state law alone.

An agreement to levy a special tax cannot be implied from an ordinance making it the duty of the City Council "to provide means to meet the payment" of a designated debt when the same may become due.

A City Council has no power to levy taxes not expressly authorized by its charter or the law. Hence, where by the charter of a city it is provided that no greater tax than one per centum shall be levied for any one year, and this maximum rate is actually levied, a mandamus will be refused even to a judgment-creditor to compel the city to levy a greater tax, or even to levy a specific tax to pay his judgment.

MILLER, J.-The plaintiff having recovered against the City of Burlington a judgment in the District Court of the United States for the State of Iowa, and having issued execution which was returned nulla bona, applied to that Court for a writ of mandamus, requiring the Mayor and Aldermen of said city to levy a special tax for the payment of said judgment. The cause being of that class which, by the act creating this Court, is transferred into it, the application is now made here for the peremptory writ.

The defendants, who have been served with notice, make answer under oath to the information, and set up, substantially, the following reasons why the writ should not be granted:

1st. That the Courts of the Federal Government have no jurisdiction to issue a writ of mandamus to persons whose functions are created by state law, such officers being responsible alone to state authority, so far as this writ is concerned.

2d. That there is nothing in the ordinance or contract, by which the debt was created, which requires that any specific tax shall be levied for the payment of this debt.

3d. That by the charter of the city of Burlington, no greater tax than one per cent. per annum can be levied on the taxable property of the city, and that the authorities have levied a tax of that amount for the present year.

The plaintiff objects, by way of demurrer, to the sufficiency of the matters thus set up in the answer, which may be treated as standing in the place of a return to an alternative writ.

1. If there were any doubt as to the power of the Federal Courts to use the writ of mandamus in cases of this character, the question is settled in favor of the existence of that power by the case of The Commissioners of Knox County vs. Aspinwall, 24 Howard S. C. R. 376. The first objection is therefore untenable. 2. In reply to the second objection it is claimed by plaintiff that in the ordinance for borrowing the money, under which the debt was contracted, on which the judgment was rendered, there is a provision for levying a specific tax for the payment of the debt and interest.

The language of the ordinance on this subject is as follows:"Be it further enacted, that it shall be the duty of the City Council of said city to provide means to meet the payment of said bonds and coupons, when the same may become due, according to the contract entered into for said loan and to pay the same.'

Does this language imply an agreement to levy a special tax separate from other taxes or other resources of the city, for the payment of this debt? Or does it imply that out of the various resources of the city, its general annual tax, its wharfage, its licenses, or its power to borrow money, some means will be provided by the city authorities for that purpose? The latter seems to be the more reasonable construction of the ordinance.

The plaintiff, however, urges that by sections 1895, 1896, 1897 of the Code, Revision of 1860, § 3274 et seq., it is made the duty of the Mayor and Aldermen of the city to levy a tax for the special purpose of paying this debt, and to see that it is collected and appropriated to that purpose, and that this duty should be enforced by mandamus. These sections do provide that in cases where judgment has been recovered against a city or any other civil corporation, and no property is found on which to levy execution, that “a tax must be levied as early as practicable, sufficient to pay off the judgment with interest and costs."1

1 These sections of the statute law are as follows:

Section 3274 (1895). "Public buildings owned by the state, or any county,

The case of The State at the relation of Brackett vs. The County Judge of Floyd County, 5 Iowa R. 380, seems to intimate pretty strongly that in such a case if the tax was not levied, a sufficient remedy is provided by section 1897 in the personal responsibility of the officers who should refuse to make the levy. From the view taken of the present case by the Court, it is not necessary to decide this point.

3. If it is true, as claimed by defendant, that the Mayor and Aldermen of Burlington have no legal authority to levy any tax on property liable to taxation, exceeding one per cent. per annum, and that they have levied a tax of that amount for the present year, it is clear that this Court cannot compel them to levy any additional tax.

The only statutory provisions on that point, brought to the attention of the Court, or which it has been able to find, are the 1st section of the Act of February 22d, 1847, to amend the charter of the city of Burlington, and the 1st section of the Act of January 22d, 1853, to amend said charter.

By the act first mentioned, it is declared that the amount of tax to be levied upon real and personal estate by the Mayor and Aldermen of the city of Burlington, after the taking effect of this act, shall not exceed 12 cents on every one hundred dollars' worth of property to be assessed." This is one-eighth of one per

cent.

The Act of 1853 says, "That to defray the current expenses of

city, school district, or other civil corporation, or any other public property necessary and proper for carrying out the general purpose of the corporation, are exempt from execution. The property of a private citizen can in no case be levied upon to pay the debt of a civil corporation."

Section 3275 (1896). "In case no property is found on which to levy, which is not exempted by the last section, or if the judgment-creditor elect not to issue execution against such corporation, he is entitled to the amount of his judgment and costs in the ordinary evidences 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 possible."

Section 3276 (1897). "A failure on the part of officers of the corporation to comply with the requirement of the last section, renders them personally liable for the debt."

said city, the City Council shall have power to levy and collect taxes on all the real and personal property in said city, not exempted by general law from taxation: Provided, That the amount of taxes levied for said purpose shall not in any one year exceed one dollar on each one hundred dollars' worth of property taxed." The result of these two sections considered alone would seem to be that except for the purpose of defraying the current expenses of the city, the tax cannot exceed one-eighth of one per cent., and cannot, for any or all purposes, exceed one per cent.

Do the provisions of §§ 1895, 1896, and 1897 of the Code repeal the above sections of the city charter, or do they override them when brought into question together, or is there any necessary conflict between them? There is certainly no express repeal, and the Code could not be intended by implication to repeal the section last quoted, for it was passed since the Code became the law of the land. The rule also is well understood, that a repeal by implication can only arise when that is the necessary inference from the impossibility that both the acts, supposed to be in conflict, can stand. If either act is to override the other, or repeal the other, certainly the later expression of the legislative will must stand in preference to the former. But in the present case, there is no such necessary conflict. The provision of the Code can have its effect by compelling the City Council to levy the tax so far as it has power to levy it. The provisions of the charter can stand as they were intended, as a useful and just limitation of that power. The previous year to this the City Council of Burlington, as appears by the answer in this case, only levied a tax of one-half per cent.

Undoubtedly if this was found to be inadequate to meet the current expenses, and to provide a fund to meet the judgment, it was the duty of the council under § 1897 of the Code, to so increase the tax, inside of one per cent., as to raise that fund if it could be so done.

This they aver they have now done to the full extent of their authority, and this Court will not order them to exceed it.

That this is a sound view of the intention of the framers of the Code is strongly to be inferred, from some of its provisions on the

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