The sole question presented by this appeal is that of the constitutionality of chapter 250 of the Acts of the Forty-eighth General Assembly, section 1 of which provides as follows:
"All taxes levied, assessed, or collected wherein the county auditor in computing the tax rate failed to deduct from the total budget requirements the tax to be derived from moneys and credits and other moneyed capital during the years 1934, 1935, 1936 and 1937, as defined by section seventy-one hundred sixty-four (7164) of the Code, are hereby declared legal and valid."
Section 7164 of the Code, 1935, provides as follows:
"When the valuations for the several taxing districts shall have been adjusted by the several boards for the current year, the county auditor shall thereupon apply such a rate, not exceeding the rate authorized by law, as will raise the amount required for such taxing district, and no larger amount.
"Provided that the county auditor shall, in computing the tax rate for any taxing district, deduct from the total budget requirements certified by any such district all of the tax to be derived from the moneys and credits and other moneyed capital taxed at a flat rate as provided in section 6985 and shall then apply such rate to the adjusted taxable value of the property in the district, necessary to raise the amount required after the deductions herein provided have been made."
In Hewitt Sons v. Keller, 223 Iowa 1372, 275 N.W. 94, this court held that, when a county auditor fails to comply with the requirements of the second paragraph of section 7164 of the Code, 1935, above quoted, the taxpayer can maintain an action in mandamus to compel a refund of the difference between the amount actually paid and the amount which should have been paid had the county auditor complied with the statute. Under *Page 263 the record herein and the law as announced by us in Hewitt Sons v. Keller, supra, the plaintiff is entitled to recover unless such right has been destroyed by the enactment of chapter 250 of the Acts of the Forty-eighth General Assembly. It is apparent that, if said chapter 250 is constitutional, the cause of action, which plaintiff had before its enactment, was destroyed. Hence it is that the only question, presented by this appeal, is that of the constitutionality of said statute. This is conceded by both parties to this appeal.
Appellee asserts that said statute is invalid because it violates sections 1, 6 and 9 of Article I, section 30 of Article III, and section 7 of Article VII of the Constitution of the State of Iowa and the fourteenth amendment to the Constitution of the United States.
The facts, pertaining to the constitutional questions herein, were stipulated. They are reviewed by the trial court as follows:
"The record as made in this case establishes that in a few counties of the state the law relative to the assessment and collection of the taxes in question had been complied with. In several of the counties there was a failure to make deductions of moneys and credits for one or more of the years involved; there were counties where the law was complied with in one or more of the years and not complied with in others; refunds were made in some of the counties to taxpayers who filed claims or were judicially determined entitled to them; in some counties where refunds were allowed before the curative act went into effect, denials of refunds have since been made. There are cases where a taxpayer owned land in counties where refunds in part have been made as well as in counties where refunds have been denied."
In holding that the statute is invalid, for the reasons asserted by appellee, the court states:
"Violations of the law with respect to deducting moneys and credits from the budget requirements have therefore resulted in the imposition of higher taxation in many of the taxpaying districts of the state than in the districts where the law was in fact complied with. *Page 264
"It seems to the Court that to sustain the act of the legislature in its undertaking to legalize and validate the taxes in question necessarily does violence to the principle of uniformity which under our law is essential to legal taxation. The legislature can do, through the instrumentality of a curative act, no more than it could do by original enactment. An original legislative act imposing the unequal non-uniform taxation throughout the state necessary to bring about the conflicting situation now existing would, in the judgment of this court, be invalid. The legalizing act seeking to make valid the illegal and unequal taxes imposed is likewise invalid. The legalizing act makes no attempt to equalize the inequalities of taxation and place the taxpayers on a common level, but its purpose is to declare valid the unlawful collection of taxes imposed on certain taxpayers, whereas other taxpayers similarly situated are not subjected to such illegal tax.
"This court is satisfied that the act in question cannot be held to have legalized and made valid the taxes in question, and the plaintiff's contention as to the invalidity of the act as stated in plaintiff's petition is, and will be, sustained on the grounds therein stated."
I think that the position taken by the trial court is right. In stating my reasons for such conclusion, it seems desirable to first consider certain fundamental principles applicable to legalizing acts.
The power of the legislature to adopt a legalizing act is concisely stated in the case of Chicago, R.I. P. Ry. Co. v. Rosenbaum, 212 Iowa 227, 231, 231 N.W. 646, 648, as follows: "A curative act may cure or legalize any act which the general assembly could, as an original question, have authorized." This rule has been repeatedly recognized and applied. The following cases are illustrative: Fair v. Buss, 117 Iowa 164, 167,90 N.W. 527; Witter v. Polk Board, 112 Iowa 380, 391, 83 N.W. 1041; Windsor v. Des Moines, 101 Iowa 343, 348, 70 N.W. 214; Clinton v. Walliker, 98 Iowa 655, 660, 68 N.W. 431; Richman v. Board,77 Iowa 513, 519, 42 N.W. 422, 4 L.R.A. 445, 14 Am. St. Rep. 308.
The corollary to the above rule is also true. The legislature may not accomplish, through a legalizing act, that which it could *Page 265 not authorize originally; it cannot do indirectly that which it cannot do directly. Cedar Rapids Water Co. v. Cedar Rapids,118 Iowa 234, 242, 91 N.W. 1081; Independent School Dist. v. Burlington, 60 Iowa 500, 504, 15 N.W. 295.
It is also fundamental that, where a result might be originally accomplished by a local or special law, that result may also be accomplished through a legalizing act which is a local or special law. The following cases are illustrative of this rule: Iowa Electric L. P. Co. v. Grand Junction, 221 Iowa 441, 448,264 N.W. 84; McSurely v. McGrew, 140 Iowa 163, 176, 118 N.W. 415, 132 Am. St. Rep. 248; McCain v. Des Moines, 128 Iowa 331, 333,103 N.W. 979; Chicago, R.I. P. Ry. Co. v. Independent Dist.,99 Iowa 556, 563, 68 N.W. 881; Independent Dist. v. Independent Dist., 62 Iowa 616, 619, 17 N.W. 895; State v. Squires, 26 Iowa 340; McMillen v. County Judge, 6 Iowa 391, 394.
The corollary to the rule just stated is also true. Where the result to be accomplished would require a general law in the first instance, a legalizing act, which undertakes to accomplish that result, must be a general law, of uniform application throughout the state. Chicago, R.I. P. Ry. Co. v. Rosenbaum, supra; Cedar Rapids Water Co. v. Cedar Rapids, supra; Stange v. Dubuque, 62 Iowa 303, 305, 17 N.W. 518; Independent School Dist. v. Burlington, supra; Iowa Railroad Land Co. v. Soper, 39 Iowa 112; Boardman v. Beckwith, 18 Iowa 292.
The taxes involved here include those for state and county purposes. Section 30, Article III, of the Constitution of Iowa provides as follows:
"The General Assembly shall not pass local or special laws in the following cases: For the assessment and collection of taxes for State, County, or road purposes; * * * In all the cases above enumerated, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State * * *"
The result to be accomplished by chapter 250 of the Acts of the Forty-eighth General Assembly was one which could be accomplished, if at all, only by a general law, of uniform *Page 266 operation throughout the state. Warren v. Henly, 31 Iowa 31, 39; Dubuque v. Illinois Central Ry. Co., 39 Iowa 56; Herriott v. Potter, 115 Iowa 648, 652, 89 N.W. 91.
In determining whether or not the trial court was right in holding that chapter 250 of the Acts of the Forty-eighth General Assembly is unconstitutional we are not concerned with the rules applicable to most legalizing acts, which are, and properly so, local or special laws. We are concerned solely with the rules applicable to legalizing acts, which, because of the result which they seek to accomplish, must be general laws of uniform operation throughout the state.
Under the record herein, the trial court was clearly right in finding and determining that the result, which chapter 250 of the Acts of the Forty-eighth General Assembly seeks to accomplish, is an unequal and nonuniform plan of taxation.
The fact that the inequality results from a difference in the tax rates between counties does not avoid the vice of inequality from a constitutional standpoint. In the case of State v. Meek,127 Ark. 349, 357, 192 S.W. 202, 205, L.R.A. 1918F 642, the court states as follows:
"Now, the constitutional guaranty with respect to uniformity is not restricted to county lines, for the express declaration is that the valuations shall be `equal and uniform throughout the state.' Therefore when this court held in the case just cited that a taxpayer had the right to compel the reduction of his assessments to conform to the assessments of other property in the county, it necessarily follows therefrom that the citizens of one county are entitled to the same remedy to compel such reduction as would afford equality and uniformity with assessments of property in other counties in the state."
Appellants contend that the existence of inequality is immaterial because the law is general in its terms and operates uniformly on all that are affected thereby, relying upon our holding in Iowa Railroad Land Co. v. Soper, 39 Iowa 112, 115, wherein we state:
"In this case the act of the General Assembly operated upon a particular condition; that is, in all municipal corporations *Page 267 where they have, before the passage of the act, levied special taxes in excess of the maximum allowed by law to pay judgments, the consequences which are named in the act follow, namely, such taxes are declared legal and valid. As in Haskel v. The City of Burlington, supra, the act applied `to all cities in the State falling within the class specified, and hence was not local nor special, but of uniform operation.' So, in this case, the act applies to all `counties, school districts, or other municipal corporations,' falling within the conditions mentioned in the act; and it is, therefore, not a local or special law, but general."
Appellants also rely upon similar pronouncements in Chicago, R.I. P. Ry. Co. v. Streepy, 211 Iowa 1334, 236 N.W. 24, and in Chicago, R.I. P. Ry. Co. v. Rosenbaum, supra. But in none of those cases was there any inequality in the plan of taxation.
In the Soper case, certain judgments had been recovered against various municipal corporations which had levied taxes to pay the same, only to find that they had no authority to levy the taxes. The legislature legalized such levies. The classification, under which the law operated, was a proper one. No inequality between taxpayers, similarly situated, resulted. There was no violation of the constitution in that regard.
In the Streepy case, certain taxes had been levied under authority of section 64, chapter 4, Acts of the Fortieth General Assembly, Extra Session. In Chicago, R.I. P. Ry. Co. v. Streepy, 207 Iowa 851, 224 N.W. 41, this court held that the statute was invalid because of a defective title. The legislature then enacted chapter 396 of the Acts of the Forty-third General Assembly, which legalized the levies made under section 64, chapter 4, of the Acts of the Fortieth General Assembly, Extra Session. There was no inequality in the plan of taxation thus legalized. In the Rosenbaum case, the decision was prior to that in the second Streepy case and involved the same legalizing act.
By reason of the foregoing, it readily appears that the cases, upon which appellants rely, are not in point. They are made controlling here only by giving to them an effect which was not intended and which is contrary to decisions of this court that appear to be controlling here. *Page 268
Appellants contend that the Soper case, considered with the Streepy and Rosenbaum cases, establishes the principle that, if a legalizing act is general in its terms and appears to operate uniformly upon all persons specified as falling within the conditions of the act, the constitutional requirement of uniformity is met regardless of the facts. The rule, as stated in such cases, was proper when applied to the facts of each case. But it is an entirely different thing to say that the rule applies irrespective of the facts of a particular case.
An illustrative case is that of State ex rel. West v. City of Des Moines, 96 Iowa 521, 527, 65 N.W. 818, 820, 31 L.R.A. 186, 59 Am. St. Rep. 381, wherein we held that a statute, which stated that it applied only to cities having a population of thirty thousand by the census of 1885 and which actually applied only to the city of Des Moines, was not a general law. We there state:
"Had the act in question been made applicable to all cities of over thirty thousand inhabitants, without a qualification that, under known facts, would exclude its operation as to any other such city, the case would be different. * * * The act is singularly specific in this respect, not even permitting any chances as to what might be the actual population of other cities but making it dependent on the census return of 1885, known at the time the act was passed, which clearly proves that only the city of Des Moines was intended as the subject of such legislation. In such a case, even though the language of the actis general, it is special legislation." (Italics supplied.)
Under the rule, contended for by appellants, the above quotation is an erroneous statement of the law. I am satisfied that the court was right in the pronouncement above quoted and that it is the appellants that are in error. The mere fact that the language of the statute may be in general terms does not make it a general law if in fact it is not.
Section 30 of Article III of the Constitution of Iowa not only requires that the act be general, but also that it be "of uniform operation throughout the State." As above pointed out, even though a statute may appear to be general according to its terms, the facts may demonstrate that it is not general. When as *Page 269 a matter of fact it is not a general law, it is our duty to so hold, irrespective of the appearance of the law from its terms. This same rule obviously applies to the requirement that the act be of "uniform operation throughout the State". Even though from its terms it appears to operate uniformly, if as a matter of fact it does not, then the constitutional requirement has not been met.
It is important to note that chapter 250 of the Acts of the Forty-eighth General Assembly does not affect the application of section 7164 in those counties where the law was complied with. As to such counties, the general law remains in full force and effect. The levies there made were and continue to be legal. It is only in those counties where the auditor violated section 7164 that said chapter 250 undertakes to release the auditor from the requirements of section 7164. The situation is directly analogous to that presented in the cases of Cedar Rapids Water Co. v. Cedar Rapids, supra, and Independent School Dist. v. Burlington, supra. In the Cedar Rapids case, we state (118 Iowa at 242,91 N.W. at 1084) as follows:
"But the effect of the legalizing act under consideration, in so far as it is applicable to the grant of a franchise beyond the limit of twenty-five years, is no more or less than an attempt to except or release the city of Cedar Rapids from the operation of a general statute which remains in full force against all other municipalities of the state, and thus accomplish by the device of a legalizing act that which the legislature could not do by direct enactment. This, we have already held cannot be done. Independent School Dist. v. City of Burlington, 60 Iowa, 500; Stange v. City of Dubuque, 62 Iowa, 304."
In the Burlington case, we state (60 Iowa at page 504,15 N.W. at page 297) as follows:
"It is insisted that this act of the legislature is repugnant to that part of section 30, art. 3, of the constitution of this State, which provides that the general assembly shall not pass local or special laws where a general law can be made applicable. We think the position is well taken. Suppose that the act of 1878 had provided that the exception therein contained should not *Page 270 apply to the city of Burlington. There can be no question that the act would have been unconstitutional, because not general and uniform in its operation. Now this legalizing act is an attempt to do indirectly what cannot be done directly."
In determining whether a tax statute operates uniformly throughout the state, we do not look to the individual taxes but rather to the principle or plan of taxation. This rule is well stated in the case of Herriott v. Potter, supra (115 Iowa at page 652, 89 N.W. at page 93) as follows:
"Section 30, art. 3, of the constitution, requires that all laws for the assessment and collection of taxes for state, county, and road purposes shall be general and of uniform operation throughout the state. This refers to the principle or plan of taxation, and not to specific taxes. `It means that all individuals and all classes shall be uniformly taxed.' A different tax may not be exacted from one person than from another, unless differently situated; nor from a designated group of persons than from another, unless difference in condition or relation or situation suggest and justify such difference. Nor may different burdens be imposed on property of the same kind in like situation. Otherwise the rule of uniformity exacted by the constitution would be destroyed. `The rule means that all individuals and all classes must contribute uniformly with like individuals and like classes to the burden of taxation.' Warren v. Henly, 31 Iowa, 31."
When the legislature undertakes to establish a plan of taxation by which one rule applies in certain counties and a different rule in other counties of the state, the principle or plan of taxation thereby developed is not of "uniform operation throughout the State". As stated by the trial court, if the legislature had attempted originally to provide for such an unequal and nonuniform principle of taxation, the legislature would obviously violate section 30, Article III, of the constitution. The legislature cannot accomplish by a legalizing act that which it could not authorize in the first instance. It cannot do indirectly that which is prohibited by direct action.
It is suggested that the legislature may have presumed that all county auditors had violated the provisions of section 7164 *Page 271
and, therefore, that the law would operate uniformly. We cannot indulge in any such presumption. In the case of State v. Meek, supra, the court states (127 Ark. at page 358,192 S.W. at page 206), as follows:
"No presumption can be indulged that all of the public officials of the state in the various counties who have to do with the assessments of property for taxation will knowingly violate the duties imposed upon them by law."
The record shows that some county auditors did violate the law. The legalizing act demonstrates that the legislature knew that some violations had occurred. The record shows that some county auditors obeyed the law. The only presumption we can indulge in is that the legislature assumed the facts to be as they were, some county auditors violated the law while others obeyed it. The legalizing act, therefore, must be given the effect which the facts show it produced.
As a result, there is a plan of taxation which is unequal and nonuniform. Such inequality and nonuniformity cannot be justified upon any theory heretofore established by this court. Suppose said chapter 250 had specified by name the counties in which the auditor violated section 7164 and had provided that, as to such named counties, section 7164 should not apply for the years 1934, 1935, 1936 and 1937, but, as to all other counties, section 7164 should be valid and binding for those years. Could anyone contend that such a plan of taxation would be of uniform operation throughout the state? But the legislature cannot do indirectly that which it cannot do directly.
The situation herein differs from that presented in the Soper, Streepy and Rosenbaum cases. In those three cases, the legalizing act applied to all counties where the taxes were levied. The plan of taxation was of uniform operation throughout the state. Here taxes were levied in every county of the state. The legalizing act seeks to establish one law for some counties and a different law for other counties. If such an unequal and nonuniform plan of taxation is to be sustained, many foreboding evils might result. They are the very type of evils which the constitution seeks to prevent. The constitution is the supreme *Page 272 law of the land. Where legislation fails to conform to the limitations therein fixed, it is our duty to declare such legislation void. By so doing, the constitution is supported, maintained and preserved as the supreme law of the land.
I think the decree is right. I would affirm.
I am authorized to state that Justices Stiger and Wennerstrum join in this dissent.