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STATE OF IOWA,
Des Moines, Jan. 24, 1870.
Hon. JAMES P. KETCHUM, House of Representatives,
DEAR SIR :-I received your communication several days ago, asking an opinion from this office upon a question which, without following the precise language in which it was embodied, I may be permitted to state as follows, viz :
“ Where a tax is levied to pay the interest on principal of bon !s issued by counties or municipal corporations, to aid in the construction of railroads, and such tax shail remain unpaid after the period fixed by law for its payment,-in other words, become delinquent, will it be subject to the same rate of interest, and liable to the same penalties, as are imposed on delinquent taxes for ordinary revenue purposes ?”
I answer no; such a tax is not subject to the extraordinary inter. est, nor liable to the penalties provided and imposed by the legislature as a means to facilitate the collection of taxes for ordinary revenue; and, as I am aware that this view will encounter the dissent of all interested in the collection of the railroad bond indebtedness, so called, amongst whom will be found many of the best lawyers in the State, I beg to submit, in support of my conviction, (not so completely as I could wish, but as fully as time and other duties will permit), some o. the reasons upon which, in my judgment, it rests.
The validity of the bonds in question, must be taken to rest upon one of the two following grounds, viz:
First.—The express or implied authority for their issue to be found in our statute law in force at the time said bonds were issued; or, second, upon the law (equally binding) as it is found in the decisions of the supreme tribunals of the State and nation. Giving to these bonds the character of commercial paper, and adjudging them to be valid and binding obligations in the hands of bona fide holders, without conceding their validity on the basis of either of these propositions, I desire to test the question under consideration by both.
Firsl.—Then assuming for argument sake that their validity rests on the provisions of the statute, is the tax levied for their payment subject to the interest and pepalty which attaches to the delinquent tax for ordinary revenue. Most of the bonds in question were issued prior to the compilation and passage of the Revision of 1860, and the statutory authority is claimed to be derived from Chapter 15 of the Code of 1851. Sections 114 and 115 specifies what questions may be submitted and the mode of such submission ; section 116 provides that a tax must be levied or authorized by the same vote authorizing the borrowing of the money, and section 117 regulates the amount or rate of taxation, fixing a maximum rate in one class of cases—public buildings—and in the other class roads and bridges & minimum; and section 122 provides that the record of the adoption or rejection of the submitted proposition shall be presumptive evidence, that all necessary preliminaries had been complied with; section 117 also provides that “any of the above taxes becoming delinquent shall draw the same interest with the ordinary taxes.”
I don't think any good lawyer either claims or admits that the authority to issue bonds or borrow money on the credit of the county or city, to aid a private corporation or individual, or any number of individuals, in the construction of a railroad, is deducible from that statute, either by expression or fair inplication. Our Supreme Court have said the public works contemplated in that chapter were the public buildings, and ordinary roads and bridges such as the necessities and convenience of society and the ordinary carrying on of the Government demanded. Such works as the public revenue is usually and ordinarily applied to
State, ex. re., Wapello Co., 13th Iowa, 389.
McClure vs. Owen, 26th Iowa, 243 and cases therein cited.
But if it is still claimed that the authority for the issue of these bonds may be gathered from this statute by implication, then I say still, the extraordinary interest or penalty does not attach, because their issue is not demanded by a necessity of the people or Government, but only to subserve a convenience; and the summary or penalty mode of enforcing its collection is not allowable by our law. It is a debt, a voluntary assumed debt, not an obligation to the Government, which is imposed on all, and which the citizen or subject comes under, and for the discharge of which his property is liable, whether he will or no. This--at the very best name for it-is but a debt, and what is the damage for the non-payment of a debt ? The statute says six per cent by law, or by contract any greater sum up to ten per cent. How a greater penalty can be imposed for the failure to pay this tax, without ignoring this law and every other law regulating the rights and obligations of parties to contracts, I am at a loss to understand.
Second.—The validity of these bonds then must be taken to depend upon the adjudication of the Supreme Courts of the United States. It must be recollected that the decision of the Federal Court is not based upon the assumption that under the constitution and