The real merits of this controversy, as well as the just and legal force of the questions involved in it, and discussed in the several opinions, will be better and more truly and fully apj>rehended by a statement of a few *91facts, in addition to those preceding the opinion of Mr. Justice Beck.
Í4 taxation-railroad. By the Code of 1851, Sec. 462, it was enacted that the “ property of corporations or companies constructing canals, railways, plank roads, turnpike roads, and similar improvements is taxed through the shares of the stockholders. * * * *.” It also provided for - the manner of enforcing the payment of such taxes; and it also enacted that all property, real and personal, in the State, is subject to taxation. This statute continued unchanged till 1858, when it was enacted that “ the property of corporations or companies constructing canals, railways” * * * etc., “ shall be taxed through the shares of the stockholders” * * ■*; and also provided a supposed more effective manner of enforcing the payment of such taxes. Sec. 7, Ch. 152; Laws of 1858. This act also provided that all property in the State, real and personal, shall be listed, assessed and taxed. lb., Secs. 11 and 12. These sections, too, were after-wards re-enacted, and became Secs. 719 and 720 of the Bevision of 1860, and are now in force as Sec. 872 of the Code of 1873.
These two acts were the only laws ever enacted in this State for the taxation of railroad property, until the enactment of Sec. 16, Ch. 173 of Laws of 1862, approved April, 8, 1862, and which took effect by publication, April 25, 1862. This act provided for a tax of one per cent, on the gross receipts of each railroad company for each year; that the report of such receipts should be made under oath to the State treasurer, on or before the first day of February of each year, and the taxes should be paid to the State treasurer on or before the fifteenth day of February, after which time they became delinquent, and subject to penalties and interest; that the State treasurer should retain the taxes so paid, and apportion one-half thereof to the several counties through which the road runs, according to the number of miles in each. The section concludes as follows: “ The tax herein provided for shall be in lieu of all taxes for any and all purposes on the road-bed, track, rolling stock, and necessary buildings for *92operating their road. But other property belonging to such company, whether personal or real, shall be taxed as property of individuals in the respective counties in which the same may lie.”
This act continued in force till the enactment of Sec. 1, Ch. 196, of Laws of 1868, which took effect, April 28, 1868; and this latter act was the same in substance as the one it amended —it simply required the company to state the number of miles of road in each county, and provided for ascertaining the gross receipts, in case the company failed to report; but it required or levied the same tax, and concluded with the same paragraph as above quoted.
The only other act, respecting the taxation of railroad property, ever passed by the legislature, prior to the one in controversy in this case, was Ch. 106 of Laws of 1870. The first section provides for a report by each railroad, annually, of its gross receipts. The second, for a levy by the state treasurer of a tax on such gross receipts, per mile, of one per cent, on the first $3,00", two per cent, on the next $3,000', and three per cent, on all over $6,000. The third, that the treasurer may collect the tax, without process, by seizing and selling property. The fourth apj>ortions the tax, one-fifth to the State, and four-fifths to the counties in proportion to the number of miles of road in each. The fifth provides for ascertaining the gross receipts in case the companies fail to report them, and a penalty for such failure, and concludes with the same paragraph as above quoted. The sixth refers to Mississippi and Missouri River bridges, and the seventh repeals all acts inconsistent with it.
After this act was passed, and in October 1871, in the case, of The D. & D. Bridge Co., v. The City of Dubuque, 32 Iowa, 427, it was held by a majority of this court, (the writer hereof dissenting), that the provision contained in each of the acts and quoted above, to-wit: “The tax herein provided for shall be in lieu of all taxes for any and all purposes on the road bed, track, rolling stock and necessary buildings for operating the road,” did not mean “in lieu of all taxes for any cmd all pu/rqposesf but only in lieu of all taxes for State *93and eoimtypivryposes, and that mmiicypal taxes might, in addition thereto, be levied thereon. This construction of the language of the several statutes was a complete surprise, not only upon railroad companies, the legislature and the people, but also, as it seemed to the writer of this, upon any recognized principle and rule for the construction of statutes.
The legislature which met in January, 1872, and shortly after this decision was made and announced, adopted an act providing an entirely different method for the assessment of this property and the taxation of railroad companies. Oh. 26, Laws 1872. And for the manifest purpose of correcting the error of language used by the legislature, or the erroneous construction' placed by a majority of this court upon the language of the previous acts above quoted, and of effectuating the (to them) known legislative intent in enacting and re-enacting the same, they provided as follows: “ Sec. 9. Every railroad company which shall have paid all taxes on gross earnings provided for by chapter 106 of the Acts of the Thirteenth General Assembly, (Laws of 1870) shall be released from the payment of all other taxes which may have been levied upon the road bed, right of way, track, rolling stock, and necessary buildings for operating their road, and no taxes for prior years, for State, county, municipal, or for any other purpose for which any tax can be levied under the laws of the State up to the first of January last, shall be collected from any such railroad company on such property.” And, as if to make assurance doubly sure, avoid any claim to the taxes under prior laws and remove any doubt respecting their repeal by implication, the legislature expressly repealed such prior laws by enacting: — “Sec. 13. All laws and parts of laws, inconsistent with the provisions of this act, are hereby repealed.”
Under these facts and circumstances this action was brought, December 24, 1872, as an ordinary action at law, to recover the municipal taxes assessed by the City of Dubuque in 1871, upon the road bed, right of way, track, rolling stock, buildings and supplies for operating the road. It is conceded that the plaintiff cannot recover, if the act, last above quo'ted, is valid. The plaintiffs’ counsel, therefore, claim and insist that such *94act is unconstitutional and invalid; and this, upon two grounds:
15. ——: - — •: municipal norporation* First. It is claimed by plaintiff’s counsel that the plaintiff, the city of Dubuque, has a vested right in the taxes in dispute, of which the legislature cannot deprive it. x 0 A One very satisfactory answer to this claim is, that it is quite clear, from the legislative history above given, that the plaintiff never had any right whatever to levy the taxes, or in or to them when levied, according to the true legislative intent and meaning of the statute under which they were colorably levied. This was abundantly shown, by the discussion of the last above act, pending its passage by the legislature. Of the forty odd members in both houses, who were members when the law of 1870 was passed, not one of them professed to have understood it to mean, as interpreted by the majority opinion of this court, but rather to be in lieu of all taxes; and this, although many of them opposed by speech, and voted against the enactment of the ninth section above quoted. The whole basis of the plaintiff’s claim, then; is a ^mistake — either by the legislature in its use of language, or by this court in the interpretation of the language used. To correct such innocent mistake, ought not to be unconstitutional. And it is not.
ic. Miraron?al Tiossfitower oveísls atme But can a city have a vested right in an uncollected tax, authorized by a general law and for a general public purpose, so as to deprive the legislature of the power to alter or repeal that general law, thereby defeating the collection of the tax? The bare statement of the proposition, it seems to the writer, legitimately and necessarily begets a negative answer. Municipal corporations are the mere arms and agencies of the sovereign authority; that authority can create such corporation at its pleasure, and can assume or resume the appointment of its officers, and can modify, change or entirely repeal or destroy their existence. This is and always has been the recognized rule of such corporations. They are public corporations.
As to private corporations the rule has been different. In the great leading case of The Trustees of Dartmouth College v. *95Woodward, 4 Wlieaton, 518, the Supreme Court of the United States, following the lead of the 'attorney for the corporation, who was possessed of the greatest mind ever produced in this nation, and equalled by none in this century, was over-persuaded to adjudge that the granting to certain persons and others of an act of incorporation by the legislative authority, was a contract within the meaning of that clause of the constitution of the United States, which declares that no State shall make any law impairing the obligation of contracts; and therefore the legislature of a State cannot alter or amend such charter or act of incorporation. That case has been followed by every court in this eounti’y, and in thousands of cases. It is not here proposed to depart from or assail that decision. But it cannot be denied that the superior capacity of the advocate stamped li:s interested vieiv indelibly, if not unalterably, upon the jurisprudence of this country. And it has often occurred to me that if the legislature, by a general law, should, (in the absence of any constitutional inhibition), enact that property invested in a particular industry by any and all citizens of the State shall be exempt from taxation, or confer other rights by the enactment of general laws, there could be no question as to the power and right of the legislature to repeal such general law, at its pleasure. And if it could repeal such a law, under which many or all of the people had made investments, it would be passing strange, upon principle, that it could not repeal the like law, if it had limited its application to a few of the people, or less than the wdiole. And yet the great case cited above, denies the power of the legislature to repeal the.law if it applies to only a few. Indeed, it is more or less true of every general law enacted, that many citizens and others make investments of capital or labor, because of, and upon faith in, the stability of such gen • eral law. But if no general law could be repealed so as to affect the interests of any who had changed their business or invested their money upon the faith of it and its stability, the entire sovereignty of the State would have been long since exhausted. Disguise it as we may, the practical effect of the Dartmouth College decision is, to exalt the rights of the few *96above those of the many. And it is doubtless true that, under the authority of that decision, more monopolies have been created and perpetuated, and more wrongs and outrages upon the people effectuated, than by any other single instrumentality in the government. Acknowledging the binding force of that decision, and the numerous decisions of this court following it, we have no purpose to deny or attempt to overrule it, yet, in full view of it and its damaging consequences, it well becomes us not to extend its doctrine of exemption from . legislative authority, to the numberless larger and lesser municipal corporations of the State, many of which have proved themselves very poor governmental agencies, and terribly exacting and bankrupting rulers.
If a municipal corporation may, under any circumstances, as between itself (and not as trustee) and the sovereign power of the State, acquire any vested rights which the latter cannot rightfully control, it certainly cannot have such right in an uncollected tax, levied under a general law, and for general public purposes. It is the sovereign will which authorizes the levy; the municipal corporation is but the creature and agent to collect; and it needs no argument to prove that the agent and creature can acquire no rights in antagonism to those of the principal and creator. It is enough, therefore, that the sovereign legislature has said to the agent municipality, that the taxes are released, and the agent shall not collect.
17. taxation: l’Gp6£ll Of statute. Rut, further than this, the legislature has expressly repealed the law under which the tax sued for was levied. It is a well established principle of law, that when a statute is ' repealed, it must be considered, as to all transactions in fieri, closed — as never having had an existence at all. The right or power to still collect the tax, “ would be inconsistent with the manifest intent of the legislature, and repugnant to the very words of the statute repealing it.” Rev. of 1860, Sec. 29; Code of 1873, Sec. 45.
*97is.. - — ;—: constitntionai *96Second. It is also claimed that section nine of the Act of 1872, which prohibits the collection of taxes, other than those assessed upon the gross earnings, and section thirteen of the same act, which repeals the prior laws including that under *97which the taxes in this case were assessed, are unconstitutional, because Section 2, of Article 8, of the Constitution, says: “ The property of all corporations for pecuniary profit shall be subject to taxation the same as that The language of this section is not, that the property of corporations shall be taxed the same as that of individuals; but that it “ shall be subject to taxation the same as that of individuals.” The manifest purpose and intent of the section is, to place the property of corporations, just like the property of individuals, completely within the legislative power for .the purposes of taxation; so that the legislature could use the same authority and discretion in the enactment of laws for the taxation of the property of corporations, as it could use in the enactment of laws for the taxation of the property of individuals. And the history of this section, in the constitutional convention, shows that the object of it was to place the property of corporations, then existing, within the power of the legislature to tax, although in the flood of special legislation, which had preceded the convention, and peculiar incorporation privileges thereby conferred, many corporations had been granted exemption from taxation. The words “ now existing or hereafter created,” which -were at one time incorporated in the section, were afterwards fully and sufficiently embraced in the phrase “ all corporations,” used in the section as adopted. The sole practical effect of the section is, to clothe the legislature with the authority to subject to taxation the property of corporations, although by the terms of their charters previously granted, they were exempted from taxation. For, by the general sovereign authority elsewhere given the legislature, it had the power to tax all other property; and the language of this section does not command the legislature to provide for the taxation of any property, nor direct the manner of making any taxation. If the constitutional convention had intended the section as mandatory, they would not have used the language, “ shall be subject to taxation,” but would have used the language, “ shall be taxed the same,” which is quite as easy to apprehend and state, and is mandatory in its words. The *98fact that the convention resorted to the language used, in and of itself, negatives the idea of any mandatory intent, This negation is further verified by the fact that the very first legislature which convened after the constitution was adopted, and within a few months after the convention adjourned, passed the act approved March 22, 1858, providing for the taxation of the property of corporations through the shares of its stockholders, and not the same as that of individuals.
But, if we give to the language of the section the construction that it is mandatory, and hold this statute to be unconstitutional, then we must hold all our revenue laws unconstitutional which have been passed since the new constitution was adopted; for none of them have provided for the taxation of the property of corporations the same as that of individuals. And this we cannot do, without overruling many of the previous decisions of this court. In Faxton v. McCosh, 12 Iowa, 529, § 462 of the Code of 1851, and § 7, Chapt. 152, Laws of 1858, (quoted supra) were directly assailed as being unconstitutional; but this court held, affirming the judgment below, that those statutes were constitutional and valid. In the case of The City of Davenport v. The M. & M. R. Co., 12 Iowa, 539, it was also claimed by counsel that these very sections were unconstitutional because of their conflict with this particular section of the • constitution under review, section 2, Art. 8, but this court held otherwise. In Tallman v. Butler County, 12 Iowa, 531, the same sections of the laws and the constitution were again under review, and they were again held constitutional; and in that case it was held, also, that the lands granted to the railroad company were not liable to taxation as lands; that they could only be taxed through the shares of the stockholders, and, says Weight, J., on page 534: “Taxation is an attribute of sovereighty. The power to tax implies a corresponding power to apportion such tax as the legislature shall deem proper. If it is unwisely (not unconstitutionally) exercised, the remedy is with the legislature. No property can be taxed, however, until the law-making power authorizes and requires it to be done, and if it be done in one or in a particular way, that alone can be pursued. It *99cannot be done in another.” Hence, if the legislature have apportioned the tax levied upon the gross earnings of railroad companies to the State and county revenue, the legislature had that implied power, and it is not competent for this court to declare a law unconstitutional, simply because the tax is so apportioned. Nor can this court say that the tax upon such gross earnings is not the same as that upon individuals. And if it was either more or less, it would not, for that reason, be unconstitutional. The U. S. Ex. Co. v. Ellyson, 28 Iowa, 374. To hold section nine, of the Act of 1872, unconstitutional because, if valid, it, in effect, enables the legislature to apportion all the tax upon gross earnings to the two purposes of State and county revenue, and does not also apportion a part to city purposes, is to directly overrule the previous decisions of this court. But, after the cities are thus provided for, by overruling previous decisions and setting aside the rightful legislative authority, why not go further and hold that the claim of the cities is invalid, because the county, township, road and school districts are not also sharers in the tax? Why are the rights of cities to be thus exalted above those of the rural districts? Equality is equity.
But the act of 1872 actually and expressly repeals parts of the prior laws, including that under which the tax in controversy was levied. And the previous decisions of this court cited, show that a tax cannot be levied or collected until the law-making power authorizes it, and in the way it is authorized. The legislature have repealed the law authorizing the collection of this tax, and it cannot therefore be collected. But, it is said, the law repealing it leaves the law in force unconstitutional. Yery well; but that does not affect the repeal, nor enable the court to re-enaet the law repealed. If the law or statute, as it is left, after the repeal of some of its sections or parts, is unconstitutional, the coupt may so declare it, and it will be inoperative. But, surely, the court cannot re-instate or re-enact the parts repealed so as to patch up the statute and make it constitutional. The right of the legislature to change, modify or repeal the powers conferred upon a municipality, is not questioned, even by the counsel for the city. *100The act of 1872, by its repeal of parts of the prior laws, sim-. ply toot away from the city the power to collect 'the tax in question.
19 coNSTiuAwfauty of judiciary. Again, while it is true that courts have the power to declare an act of the legislature unconstitutional, “ its exercise is considered of the most delicate and responsible nature, ■ an(^ *s noi resorted to unless the case be clear, decisive and unavoidable; it is the duty of the court to give an act such a construction, if possible, as will maintain it.” Santo v. The State, 2 Iowa, 165 (i. e., 208), and cases cited.
„„ taxation. .Further than this, it seems very clear to me, upon both-principle and authority, that an action at law cannot be main-. to recover a tax, for the collection of which the revenue act itself has made ample provisions. ■ Our revenue laws have uniformly provided the most complete, speedy, and adequate remedy for the collection of all taxes, by distress and sale. That remedy was fully open to the plaintiff. The plaintiff cannot, by the resort to an action at law, deprive the defendant of the redemption allowed by the revenue law. If it can be done in this case, it can be done in every case. There is not a word in the pleadings giving any ground or reason for the resort to an. action at law. Without some such showing, by both allegation and proof, the action- cannot be-maintained. The plaintiff has no right to bring the action; ■ nor does the showing of a tax levied and unpaid establish a debt, so. as to entitle the plaintiff to judgment. The authorities abundantly support this view.