Mayor & Common Council of Placerville v. Wilcox

By the Court, Sprague, J.: The question presented on this appeal involves the validity of an ordinance of the Common Council of the City of Placerville, so far as the same prescribes the mode of enforcing the collection of delinquent city taxes.

The twenty-third section" of the Act “to incorporate the City of Placerville, and extend the limits thereof,” approved April 6th, 1863, (Stats. 1863, p. 215,) authorizes the Common Council “to levy and collect taxes on all property within the city, both real and personal.” The same Act (section four) provides for the election of a City Marshal and City Attorney, and that the Marshal shall be ex officio Collector and Superintendent of Streets. Sections twenty-seven and thirty-five of the same Act read as follows:

“ Sec. 27. Real and personal property may be sold by the City Collector for taxes or assessments due the city. The manner of assessing and collecting taxes, and proceedings for the sale of property in case of non-payment of the same, shall he prescribed by ordinance.

“Sec. 35. It shall be the duty of the Collector to receive and collect all taxes and licenses due the city, and all other revenues or money due or to become due, and pay the same over to the Treasurer.. The time and manner of such collection and payment shall be such as the Common Council shall by ordinance prescribe.”

Municipal corporations possess and can exercise only such powers as are expressly or by necessary implication conferred or delegated by the legislative Act of incorporation; and when the legislative charter prescribes the mode of exercising such delegated powers, it must be strictly pursued.

The provisions of appellant’s charter, above quoted, manifestly confer upon, the City Collector the power, and make it his duty, to collect all taxes due the city; and, in the process of such collection, when it becomes necessary, to sell [24]both real and personal property for taxes due the city. But the lime and manner of such collection and sales by the Collector are to be prescribed by ordinance of the Common Council; in other words, the charter authorizes the Common Council, by ordinance, to prescribe the time and mode of procedure by the Collector in collecting taxes and making sale of property for taxes due the city. This power and duty of collecting city taxes and making sale of real and personal property to enforce such collection, having been expressly conferred upon the City Collector by the charter, the question arises, is the ordinance of the Common Council prescribing the “time and manner of collecting” city taxes in conformity or in conflict with the terms of such charter?