lo. taxes: ex-judgment73^ ■county!a I do not concur in the holding upon the fourth point of the foregoing opinion. It is held there that the Board of Supervisors have no power to levy a tax to pay a judgment against the county, where they have already levied the .maximum allowed for ordinary county revenue — the judgment having been rendered upon warrants issued for ordinary county expenses. In my opinion, they have the power to levy a tax to pay such judgment, and if they fail to do so, they may, at the suit of the' judgment plaintiff, be compelled to .do it by *139mandamus. Regretting this, as I always do every difference of opinion with my brothers, I proceed to state, with great deference to their views, the grounds upon which I rest my opinion.
Our statute, under the title “ Revenue,” enacts: “ Sec. 710. That the Board of Supervisors of each county in this State shall annually, as hereinafter provided, levy the following taxes upon the assessed value of the taxable property in the county: 1. For State revenue, one and one-lialf mills on a dol; lar. * * * 2. For ordinary county revenue, including the support of the poor, not more than four mills on a dollar. 3. For support of schools, not less than one nor more -than three mills on a dollar. 4. For making and repairing bridges, not more than three mills on the dollar, (as amended Sec. 1, Ch. 87, Laws 1866).” And under the title “ Executions,” our statute also enacts: “Sec. 3274. IPublic buildings owned by the State, or any county, city, school district, or other civil 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. Sec. 3275. 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 evidences of debt, a tax must be levied as early as practicable, sufficient to pay off the judgment with intérest and costs.”
It was held by this court in Clark, Dodge & Co. v. The City of Davenport, 14 Iowa, 494, that this section of our statute last quoted conferred no power or authority upon the officers of the defendant, the city of Davenport, to levy any tax; and that, having already levied a tax of one-half of one per cent, (the maximum of their power under the city charter,) they could not be required by mandamus to levy any further tax to pay a judgment. The doctrine of this case has been recognized or followed in the following cases also: Coy v. The City Council of Lyons, 17 Iowa, 1; Oswald v. Thedinga, *140Id., 13; Porter v. Thompson, 22 Iowa, 391; Coffin v. The City Council of Davenport, 26 Iowa, 515, and incidentally in other cases. The charter of the defendant, in the case first above cited, gave power and authority to levy taxes, etc., “ not exceeding one-half of one per cent, per annum upon the assessed value,” etc.; and in the case next cited, “not exceeding ten mills per cent.”
All these cases related to cities organized under special charters, and not under our general municipal incorporation act.
Now, if the powers of the Board of Supervisors respecting the levy of taxes is not other and different from the powers of the several city councils, in the cases cited, then those cases become conclusive upon us, and would lead us inevitably to negative the power to levy the tax.
But, the learned judge who prepared the opinion of the court in the first and leading case above cited, proceeds to show that § 3275 does not apply to the defendant in that case, or to any city organized under a special charter. He says: “This section is found in the Code of 1851, in a general .statute relating to executions. It applies to all corporations as organized under the general statutes passed at the same time this provision was. This law was passed, however, when there was a constitutional provision in force, which prohibited the creation of corporations, by special legislation, except for political and municipal purposes. It was under this constitution that the charter of the defendant was granted. The defendant is a municipal corporation, and was created by a special law, could not constitutionally exist except by special legislation, and if not, no statute, general in its provisions, could apply to it, or regulate or control its process. If this general provision would control the defendant, why the necessity of an amendment to its charter, giving it the power to levy a special tax to meet the interest on bonds issued prior to January, 1855? This section occurs incidentally in the chapter in relation to executions. It does not purport to be an amendment to the charter of. defendant; nor does it specially relate to corporations for city purposes, * *
*141u _. Eey not2Ippiy°to cities. If this is the correct view, that section 3275 has no application whatever to the cities organized under special charters, and hence its provisions had no bearing or influ-. ence determining the leading case from which we make the quotation, and the other cases cited, then it is clear that those cases do not conclude us nor tend to lead us to deny the power of the Board of Supervisors to levy a tax under said section. Because the right to levy a tax in this ease is grounded upon section 3275, which, it was held, as' appears from the above quotation, did not apply to those cases. This case, then, is to be decided upon the true interpretation of this statute, and cannot be controlled by those eases, in which that interpretation was not considered.
But suppose, as might be inferred from some of the language used in one or more of the opinio ns. in the cases cited, that the court considered section 3275 as applying to those cases; and concede, for the purpose of the discussion,'that it does apply equally to cities under special charters, and under the general law, and to counties.
It will be observed that the charters of the cities referred to limit the power of taxation in the aggregate to the per centum specified. That is to say, those cities might levy taxes for the various legitimate purposes, and at such rate for each purpose, as the proper officers might determine, but all such levies could not in the aggregate exceed the limit prescribed. And hence, if the limit had been reached, no further levy could be made, even for the purpose of paying a judgment. But as respects the Board of Supervisors, there is no limit fixed for the aggregate of the levies of taxes they may make, but a limit prescribed to the tax for each purpose, save the one. That is to say. they must levy annually, first, for State revenue not exceeding two mills; second, for ordinary county revenue, etc., not more than four mills; third, for support of schools not more than two mills; fourth, for making and repairing bridges not more than three mills on the dollar, (Rev., Sec. 710, and Sec. 1, Ch. 87, of Laws 1866); and, then, also a t$x sufficient to pay off any judgment with interest and costs.' (Sec. 3275). Thus it will be seen that while there is a. *142limit fixed to fotir of the five items for which, the Board of Supervisors may levy taxes, there is no limit prescribed for the fifth and last item, except that it shall be sufficient to pay off the judgment, interest and costs,. The first four they must levy annually; the last, whenever a judgment is rendered against the county, requiring it. These statutes, (Secs. 710 and 3275 are in pari materia, and are to be thus construed together; and being so construed, it is manifest that the Board of Supervisors are clothed with the power to levy the tax sufficient to pay off the judgments, although they may have levied taxes for the other purposes to the extent of the maximum of their authority.
Nor is there, to our mind, any force or validity in the argument, that since the judgments were rendered upon warrants issued for the one or the other of the two purposes, ordinary revenue or bridges, and the maximum tax for those had been levied, therefore no tax could be levied to pay off such judgments. It is enough that they are judgments, for thereby is created the necessity for the exercise of the power to levy a tax to pay them, which section 3275 has conferred. If the warrants upon which the judgments were rendered, were issued wrongfully, or in excess of any authority so to do, this might constitute a defense to the action upon them; (Clark v. Des Moines, 19 Iowa, 213, and Clark v. Polk Co., Ib., 248); and, if it had been then interposed, might have defeated the recovery of the judgments. But that stage of the controversy is passed, and the judgments are now verities, and absolutely conclusive that the warrants were valid and properly issued; and that the county justly owes the amount. The State ex rel. v. Beloit, 20 Wis., 79; The Mayor v. Lord, 9 Wall., 409; Supervisors etc. v. United States, 4 Wall., 435.
i2.--: power oi cities to levy. And while we are upon the subject of the previous decisions of this court, it may be well to refer more particularly to the cases cited supra, of Coy v. The City Council of Lyons, 17 Iowa, 1, and Coffin v. The City Council of Davenport, 26 Iowa, 515. In each of those cases it was expressly held that the respective city councils had the power and authority to levy and collect a tax to pay a judgment, and *143they were severally required by the order and mandate of this court to.do so, although there was no pretense or claim made that the power lo so levy or collect was expressly given by the charter in either case. And it also appears to me that those decisions very clearly negative the idea contained in the foregoing majority opinion that “ one of the evident purposes of ordinary revenue is for the payment of debts; ” because they hold that the ordinary revenue cannot be taken to satisfy judgments, but may be held and kept in the treasury for the purpose of paying the ordinary expenses; and the judgment creditor has no right thereto as against such uses. See also Grant et al. v. The City of Davenport, 36 Iowa, 396.
13.-: — : pro-•payment of •debt. But further than this, it will be remembered that, under the principles of the common law, and in the manner prescribed by statute, an execution might be issued against the corporation judgment debtor, and its property sold thereunder; and in case there was no property of the corporation found upon which to levy, it was lawful to levy upon and sell the property of the corjiorators. This is the rule in the New England States, up to the present time. Dillon on Mun. Corp., 641, and note. And, it is manifest that our st-atute,Sec. 3274, above quoted, was enacted to expressly prohibit such a course. And it is also apparent that Sec. 3275 was enacted to provide an equally efficacious means for enforcing the payment of judgments. Without either section, the common law, or New England method of enforcing payment of judgments, might have obtained; and in such case perhaps no power to levy a tax would have been implied. But that method was prohibited by Sec. 3274, and its equivalent, the power to levy a tax to pay the judgment was enacted in its stead. How it can be said, in view of the previous law and of this legislation, that See. 3275, “gives no independent power of taxation,” as respects the counties, is, to me, a marvel. That it gives no independent authority to a city to levy a tax beyond, the aggregate limits of its power, when the power to levy is expressly limited by the charter of the city itself, - is quite another question.
*14414.-; —: And there is still another view, having the support of many adjudications in several different States, as well as of the Federal courts, and which is grounded upon very plain principles of common honesty and fair dealing, and which, in the absence of any limit upon their aggregate power of taxation, fully sustains the power of the Board of Supervisors to levy the tax to pay the judgments, as they have done in’ this case. It is fairly stated by Thompson, J., in delivering the opinion of the court in the Commonwealth ex rel. Armstrong v. Comm’rs of Allegheny, 37 Pa. St., 277, as follows: “Nor do we think that the succeeding'plea, (want of power to levy a tax,) is sustained. The act of 1843 authorized subscriptions by certain counties to be made as “ fully as any individual could do,” without prescribing more precisely the terms. But by the fifth section of the act of April 18, 1843, counties subscribing are authorized to borrow money to pay for such subscriptions. We have decided that bonds or certificates of loan issued by a municipal corporation, is an ordinary and appropriate mode of borrowing money, and the act of 1853 expressly authorized the issue of such securities. The subscriptions (to the stock of the railroad), were accordingly made, and the bonds issued. Thus was a lawful debt incurred by the county, and as no other mode of extinguishing it, or of paying the interest thereon, was provided, it follows of eowrse, that the ordinary mode of raising the means must be resorted to, namely, to provide for it in the annual assessment of taxes for county purposes,” (see page 284); and in the same opinion it is further said: “ In the next place it is averred that there is no authority to levy a tax for the payment of the interest by the county. We have already treated of this, and said that the authority to create the debt implies an obligation to pay it, and where no special mode of doing so is provided, it is also implied that it is to be done in the ordinary way — by the levy and collection of taxes. This plea is insufficient.” (See page 290.) The same court has repeatedly decided the same point in the same way. Commonvoealth ex rel. Armstrong v. Perkins, 43 Pa. St., 400; Commonwealth *145ex rel., etc., v. Allegheny, 32 Pa. St., 218; Commonwealth ex rel., etc., v. Pittsburg, 34 Pa. St., 496, etc.
In the case of The State ex rel. Hasbrouck v. The City of Milwaukee, 25 Wis., 122, Cole, J., in delivering the opinion of the court, says, on page 133: “Still this general proposition may be maintainable upon the authorities that, where a municipal corporation has the power to contract the debt, it has, by necessary implication, authority to resort to the usual mode of raising money to pay it, which, undoubtedly, is taxation.” And in the same case Dixon, Ch. J., says, on page 142: “ But if I had not this plain ground to stand upon, namely, the power of taxation expressly given by the statutes authorizing the city to contract the debt, I should still hesitate long before holding that the creditor by judgment in such case had no remedy for its collection. I can hardly conceive it possible that such a state of things can exist under the constitution of this State, as I have had reason to observe on several occasions heretofore. Phelps v. Rooney, 12 Wis., 698; Soutter v. Madison, 15 Wis., 37; Bull v. Conroe, 13 Wis., 237. The raising of money by taxation being the usual, and, I may say, the only means by which the payment of such debts can be made or enforced, the power to tax in the ordinary methods,, if not expressly given would, as it seems to me, be most clearly and necessarily implied from the power to contract the debt itself, and would run with the debt, creating a continuous and irrepealable obligation and duty to exercise it so long as the debt, or any part of it, remained unpaid. Such appears to be' the doctrine of the Pennsylvania decisions upon this point, and it appears to me sound, wholesome and just.” See also, Crane v. The City of Fond du Lac, 16 Wis., 196. To the same effect are the cases of The People ex rel., &c., v. San Francisco, 21 Cal., 668, and cases cited; also, The City of Chicago v. Halsey, 25 Ills., 595; Olney v. Harvey, 50 Ills., 453; Schaffer v. Cadwallader, 36 Pa. St., 126. The same doctrine is also held in other States, and in the Federal Court, see Butz v. Muscatine, 8th Wall., 575, and .cases there cited.
This opinion is already too extended, and may best be concluded by a recapitulation of the grounds of my dissent, *146namely: 1st. Our eourt has never decided that section 3275 gave no power to the Board of Supervisors of a county to levy a tax to pay a judgment. 2d. We have held, in at least two cases, that cities have power to levy a tax (and it must arise under that section,) -to pay judgments against them. 3d. The section 3274 repeals all other means of paying judgments, and it is, from its immediate connection, very manifest that section 3.275 was enacted to provide an equally adequate remedy to pay judgments by conferring the power to levy a tax therefor. 4th. If no power was given thereby, then, since the judgment is a debt, and the power to contract it was conclusively established by the rendition of the judgment itself, it, the power to contract, carries with it in the absence of any limitation upon the power of taxation, the implied and necessary power to pay it in the only manner it can be paid, to-wit: by the levy of a tax. ' 5th. The plainest principles of honesty- and justice demand that such judgment creditors shall, like all other creditors, have the right to enforce payment. That right had better be justly, fully and manfully granted them in the domestic tribunals, than, by denying it, drive them to the federal courts where, upon stcure decisis alone, they are sure of the relief we deny them.