This case is brought before us by a writ of error to the Circuit Court of the United States for the District of Iowa.
The case as presented in the record is as follows: Upon the petition of the relator an alternative writ of mandamus was issued to the defendants in error, wherein it was set forth that it had been represented to the court that the relator, on the 16th of May, 1867, recovered a judgment against the city of Muscatine for the sum of $57,615 16/100, with interest at the rate of seven per cent. per annum, upon which judgment an execution had been issued and returned 'no property found;' that the business of the corporation was managed by the mayor and aldermen, whose duty it was to cause its taxes to be levied and collected, and to provide for the payment of all judgments recovered against it; that this judgment was for interest on certain bonds executed by the city in 1854; that it was the duty of the mayor and aldermen to provide for the payment of the interest as it fell due; that it was their duty to levy and collect taxes and pay such judgments when recovered; that a demand had been made on the mayor and aldermen to levy and collect the taxes necessary to pay this judgment, interest, and costs; that they had refused and denied their authority to do so; that the city has no property liable to execution; that by the laws of Iowa when the debt was created and when the judgment was recovered, the public property of the city and the private property of its citizens were exempt from levy and sale to pay this debt and judgment, but that it was made the duty of the mayor and aldermen, as early as practicable after it was recovered, to levy a tax sufficient to pay the judgment, with interest and costs; that they had refused to perform that duty, and that the relator was without other adequate remedy at law.
The mayor and aldermen were therefore commanded forthwith to levy a sufficient tax on the taxable property of the city-for the year 1867-to pay the judgment, interest, and costs, and to pay them, or to appear and show cause why they refused to do so.
The defendants in their return set forth—
(1.) A denial of the duties alleged to rest upon them.
(2.) That under the laws of Iowa they are not permitted to levy or collect a tax exceeding in amount one per cent. upon the taxable property of the city for all purposes in any one year; that this amount has been levied for the year 1867; that a part of it has been collected and a part is delinquent; that the entire amount collected has been expended for the necessary current and incidental expenses of the city, and that the entire amount levied and collected for the year 1868 will be needed for the same purposes for that year, and that those expenses are a paramount lien upon the fund.
Other matters are set forth in the return which it is not necessary particularly to mention.
The plaintiffs demurred to the return. The court overruled the demurrer. The plaintiffs elected to abide by it, and judgment was entered against them.
By the statute of Iowa of 22d of January, 1852, entitled 'An act to amend the charter of the city of Muscatine, approved February 1, 1851,' it was enacted that an assessor should be appointed, whose duty it should be 'to make an assessment of the property of the city subject to taxation, and upon whose assessment the council may levy a tax of not exceeding one per cent. upon the value in any one year.' This statute was in force when the writ was issued and when the return was made. If there were no other statutory provisions bearing on the subject it would be conclusive in support of the judgment rendered by the court below.
The code of 1860, chapter 110, title 'Execution,' declares as follows: 'Sec. 3274. Public buildings owned by the State, or any county, city, school district, or other civil corporation, and any other public property which is necessary and proper for carrying out the general purpose for which any such corporation is organized, 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.' 'Sec. 3275. In case no property is found on which to levy, or which is not exempted by the last section, or if, after judgment, the 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 practicable, sufficient to pay off the judgment with interest and costs.'