
    Hayzlett et al. v. The City of Mount Vernon.
    Municipal corporation: taxation. It is not competent for the inhabitants of a town and territory adjoining to exempt, by the petition of incorporation, property from municipal taxation which would otherwise be subject thereto.
    
      Appeal from, Linn District Court.
    
    Thursday, February 22.
    The plaintiffs filed their petition in equity, alleging that they are owners respectively of farm property or homesteads, within the corporate limits of the city of Mount Yernon, Iowa, which are not within the town plat of Mount Yernon or any of its additions. That all the proceedings for the incorporation of the said town of Mount Yernon were based upon a certain petition signed by inhabitants of the territory, embraced within the limits of said incorporation, containing a provision as follows: “No farm property or homestead, not within the town plat or any of its additions, shall be taxed for municipal purposes included in the territory hereinbefore described. All town property within said territory, whether in the original plat of the town of Mount Yernon, Iowa, or any of the additions thereto or reservations therein, shall be subject to all municipal taxation for tbe improvement of said incorporation.”
    That, on tbe Ith day of July, A. D. 1869, tbe proceedings for the incorporation of said town of Mount Yernon were completed in tbe manner provided by law, and afterward said city of Mount Yernon, by its officers and agent, proceeded to make an assessment and to levy taxes for municipal purposes on all property witbin tbe corporate limits, without excepting, from sucb levy, tbe farm property and homesteads not embraced witbin tbe town plat and additions. That sucb assessment and levy were afterward given to tbe treasurer of said county of Linn, who caused' tbe same to be entered on tbe tax list of said county for tbe year 1869, and that, unless restrained, be will proceed to enforce tbe collection of said illegal taxes. Tbe petition prays a writ of injunction, commanding tbe treasurer to withhold from tbe collection of said illegal taxes, and requiring the officers of tbe city of Mount Yernon to refrain hereafter from tbe assessment and levy of taxes on the aforesaid property.
    Tbe defendants answered, admitting the allegations in tbe petition, and averring as follows: ££ That they claim that said clause contained in tbe petition for tbe incorporation of tbe city of Mount Yernon, and which is as follows, to wit: £No farm property or homesteads, not witbin tbe town plat or any of its additions, shall be taxed for municipal purposes included in the territory hereinbefore described,’ is and was altogether illegal and void, and therefore not binding on said incorporation, its agents or officers, and, in consequence thereof, tbe officers of said incorporation have caused all property witbin tbe corporate limits to be listed, assessed, and taxes levied upon tbe same for municipal purposes, in disregard of said provision or clause contained in said petition, because they say that all tbe property described in tbe fourth paragraph of the plaintiff’s petition is not used exclusively for farming purposes, and that all of said property is so situated in reference to the city of Mount Yernon, and is so contiguous thereto, that it is benefited by the municipal government of said city, and that the plaintiffs and their said lands derive all the benefits and advantages from said municipal government and said, incorporation, that any other persons or property owners have who reside in, or own property within said corporate limits; that they, the said plaintiffs, and their land are benefited by the expenditure of the taxes levied and assessed upon the whole city, and their lands were therefore subjected to municipal taxation.
    And defendants further answering state that there are a large number of homesteads included within the corporate limits of Mount Yernon aforesaid, consisting of parcels of ground differing in size and. quantity, some containing one-half acre, some an acre, and some two acres of land, and some more, which are not in the town plat, or any of the additions or reservations, but which are so situated in the corporation that some of them are entirely, and some partially, surrounded by the town plat and the additions thereto^ and receive all the benefits and ad-, vantages from city government and taxation that ’any prop:erty within the city receives, and, consequently, have been listed and assessed the same as other property, in disregard of the provisions in said petition for incorporation.”
    ^ A general demurrer to this answer was sustained, and the injunction, which had been before granted, was made perpetual.
    Defendants appeal.
    
      Thomas Corbett for the appellants.
    
      J. B. Young for the appellees.
   Day, J.

The only question presented by the record is, whether it is competent for the inhabitants of a town and of the territory immediately adjoining, to incorporate such town and the adjoining territory, in such manner as to exonerate a portion of the property within such incorporation from the payment of taxes for municipal purposes ?

This question, we think, must be answered in the negative. In so construing the law we do not hold that all property included in the corporation is, of necessity, liable to taxation. See Fulton v. The city of Davenport, 17 Iowa, 404.

The point ruled is, that it is not competent, by the petition for incorporation, to exempt from taxation for municipal purposes, property which otherwise, under the law, would be subject to such taxation.

The impropriety of allowing such a restriction to be interposed is fully illustrated by the facts of the present case alleged in the answer, and by the demurrer admitted to be true. It is alleged that “ there are a large number of homesteads included within the corporate limits of Mount Yernon aforesaid, consisting of parcels of ground differing in size and quantity, some containing one-half acre, some an acre and some two acres of land, and some more, which are not in the town plat, or any of the additions or reservations, but which are so situated in the corporation, that some of them are entirely and some partially surrounded by the town plat, and the additions thereto, and receive all the benefits and advantages from city government and taxation that any property situated within the city receives.” Hence, this property so situated derives all the benefits resulting from the construction of sidewalks, and the grading and lighting of streets, and receives in common with other property the protection of fire engines and of a police force. Now, if it is competent to so incorporate a town as ■to exonerate such portions from taxation, it places it in the power of those owning land so situated to burden the other portions of the town with the expenses of a city government and to reap all títe advantages thereof, without assuming any of its attendant inconveniences or burdens.

For it will not unfrequently happen that persons so situated will possess the balance of power, and be able, by their votes, to impose or reject a city government. That this power might be so used in any case is, it seems to us, a sufficient reason for denying the right to exercise the power in all cases. Again, if we recognize the right to incorporate this town, with an exemption of this property from taxation, by what course of reasoning shall we deny the right upon incorporation to exempt from taxation property lying beyond certain streets within the town plat ? What valid argument applies to one case that is not equally applicable to the other? Tet, if the last proposition should be conceded it would enable the majority of the inhabitants of a town to organize a city government, and to impose the burden of maintaining it upon the minority. The exercise of such a power might readily be made an instrument of the grossest oppression and abuse. No one would think of recognizing a doctrine so opposed to every sense of natural justice. And yet it is but a corollary of the doctrine contended for by the appellee. Whenever the principle is recognized that the incorporators of a town may exempt from taxation certain of the property within its limits, there ceases to be any legal rule by which the exercise of this right can be circumscribed.

We are of opinion that the provision in the petition for incorporation exempting certain property from municipal taxation is a nullity; that the city of Mount Yernon was not thereby deprived of the right to levy taxes upon property within its corporate limits, otherwise subject to taxation, and that the demurrer to the answer should have been overruled.

Reversed.  