to the municipalities referred to became the property of the consolidated city, and it was made liable for their indebtedness, amounting at the time, in the aggregate, to the sum of $681,000. This amount has since been increased by legislative authority until at the time this suit was commenced the entire bonded indebtedness, the interest of which is payable from the general revenues of the city, amounted to $1,181,500, and the interest thereon to $73,907.65. By the charter of the consolidated city, which imposed thereon the debts of its predecessors, and under which the additional bonded indebtedness was incurred, the common council was authorized and empowered to assess, levy, and collect a tax on all the taxable property in the city of 3 mills on the dollar for general municipal purposes, a special tax of 31⁄2 mills for the fire department, and a like tax for the police department, making a total of 10 mills on the dollar. In 1893 the charter of 1891 was repealed, and a new one enacted, which was in force at the time the tax in question was levied, and by which its validity must be determined. The portions of the latter charter material to this controversy are as follows:

"Sec. 36. The council has power and authority within the city of Portland-(1) To assess, levy and collect taxes for general municipal purposes, not to exceed eight mills on the dollar, upon all property, both real and personal, which is taxable by law for state or county purposes." Laws 1893, p. 819.

"Sec. 176. The board of fire commissioners shall, on the first day of January of each year, or as soon thereafter as practicable, report to the common council the estimated amount of salaries and other necessary expenses of the fire department for the ensuing year, together with the estimated cost of constructing and erecting cisterns and hydrants, and the erection and the repair of buildings, the purchase of lots for the purpose of erecting engine houses thereon, the purchase of engines, hose carts, hose, horses, feed, material, and apparatus for said department required for the ensuing year; and the common council shall, if they deem the same practicable, at the same time that other taxes are levied and collected, levy and collect a special tax sufficient to raise the amount so estimated by the board of fire commissioners, which tax shall be paid into a fund to be known as the fire department fund of said city of Portland, and shall be subject solely to the control of the said board of fire commissioners, and shall be paid out by the city treasurer upon warrants drawn by the mayor and auditor of the said city upon requisitions therefor made by the president of the board of fire commissioners, for claims duly allowed by said board; and the mayor and auditor are hereby directed to draw warrants on said fire department fund in accordance with the requisition of said

president of the board of fire commissioners, such requisitions to remain on file in the office of the auditor, and to be sufficient authority for drawing warrants as aforesaid."` Laws 1893, p. 861.

"Sec. 204. The fiscal year of the city shall commence on the first day of January and end on the last day of December of each year, and during any such year the rates of general and specific taxes levied must not exceed, in the aggregate, one and one-half per centum." Laws 1893, p. 867.

W. P. Lord, Joseph Simon, and W. T. Muir, for appellants. Wm. M. Cake and R. Williams, for respondents.

BEAN, J. (after stating the facts). The principle is universal that, whenever a municipality or other governmental agency of a state seeks to impose the burden of taxation upon a citizen or upon his property, it must be able to show the grant of such power by express words or necessary implication. No doubtful inference from other powers granted or from obscure provisions of the law, nor mere matter of convenience, or even necessity, will answer the purpose. The grant relied upon must be evident and unmistakable, and all doubts will be resolved against its exercise, and in favor of the taxpayer. "Every municipal corporation, and every political division of the state, which demands taxes from the people," says Judge Cooley, "must be able to show due authority from the state to make the demand." Cooley, Tax'n, 474. Or, as Judge Dillon puts the same doctrine: "It is a principle universally declared and admitted that municipal corporations can levy no taxes, general or special, upon the inhabitants or their property, unless the power be plainly and unmistakably conferred. It has, indeed, often been said that it must be specifically granted in terms; but all courts agree that the authority must be given either in express words or by necessary or unmistakable implication, and that it cannot be collected by doubtful inferences from other powers, or powers relating to other subjects, nor can it be deduced from any consideration of convenience or advantage." 2 Dill. Mun. Corp. (4th Ed.) § 763. It is by the application of these fundamental principles to the granted powers of the defendant city that the case in hand must be determined, and in our opinion it presents no serious difficulty. It is admitted that there is no express power to levy taxes conferred by the charter, other than that granted by sections 36 and 176, and it is not claimed that the tax in question was levied under the provisions of either of these sections. The contention for the city is that section 204 confers, by implication, the power to levy taxes for special purposes in addition to the 8 mills authorized by section 36, to the extent, in the aggregate, of 15 mills. But we are unable to concur in this construction of the section. It is argued that the legislature having limited the rate of taxation for general purposes to 8

mills, and subsequently provided, in section 204, that the rate of general and special taxes must not exceed, in the aggregate, 11⁄2 per cent. in any fiscal year, it intended to and did thereby authorize, by implication, the levy of special taxes to the amount of 7 mills. In short, it is sought to imply the power of taxation from mere words of limitation; but manifestly the grant of a power by the exercise of which a citizen may be deprived of his property in invitum cannot be safely thus inferred. The section in question is found among the miscellaneous provisions of the charter, and was evidently copied from that of 1864 into each succeeding charter, without noticing that it did not conform to the actual limit on the power of taxation elsewhere provided in the respective charters. It was not originally intended as a grant of power, and obviously cannot be so construed. It does not declare that a special tax may or shall be levied. All that is said on the subject is that the aggregate rate of taxation in any one year shall not exceed a certain limit. It would be indeed strange if the legislature, intending to confer the important right to levy taxes in excess of the power already granted, should have left such intention to be ascertained by doubtful inference from a mere limitation on the power of taxation in a section of the charter relating to the beginning and ending of the fiscal year, and that, too, without any declaration or provision anywhere in the charter as to the purpose for which this special tax might be levied. The power to tax, and the purposes for which the money derived therefrom should be used, are to be found elsewhere in the charter; and, if it was intended to authorize the levy of an additional special tax to pay interest on the bonded indebtedness, it is hard to see why it was not done when the subject of taxation was before the legislature. It appears quite clear that section 204 cannot be so construed as to confer the power to levy a special tax for any purpose, but that all the power of taxation possessed by the defendant city under its charter must be found in sections 36 and 176, above quoted.

But it is strenuously insisted that under this construction of the charter the city will be unable to meet its current expenses and pay the interest on its outstanding indebtedness. If true, this argument might be a very persuasive one, if addressed to the lawmaking power; but it can have no weight with the judiciary, whose duty it is to interpret, and not make, laws. The power of taxation is a sovereign right, which belongs exclusively to the legislative branch of the government, and can only be exercised by subordinate governmental divisions in pursuance of laws passed by the legislature for that purpose. They are but instrumentalities of the state, brought into existence for public purposes, and have no authority beyond that conferred by the law creating them. They have no inherent power of taxation. Their right to impose burdens upon

persons or property is wholly statutory, and can be exercised only to the extent granted. And when the limit prescribed in the grant of the taxing power is reached the power is exhausted, and the courts cannot even compel the levy of a tax in excess of that limit at the suit of a creditor whose debt would otherwise remain unpaid, unless the limitation is such an abridgment of the right of taxation as it existed at the time the debt was incurred as in effect to impair the obligations of the contract. 15 Am. & Eng. Enc. Law, 1140; U. S. v. Burlington, 2 Am. Law Reg. (N. S.) 394, Fed. Cas. No. 14,687, and Judge Dillon's valuable note thereto; Portland Sav. Bank v. City of Montesano, 14 Wash. 570, 45 Pac. 158; Vance v. City of Little Rock, 30 Ark. 435; Supervisors v. U. S., 18 Wall. 71; Clark v. City of Davenport, 14 Iowa, 497; State v. Shortridge, 56 Mo. 126. If, under its granted powers, a municipality cannot provide sufficient revenue, in the opinion of its officers, for municipal purposes, the only alternative, if its limit of indebtedness has already been reached and its financial honor is to be preserved, is either an application to the legislature for more extended powers of taxation, or a reduction of expenses so as to bring them within the income. By the constitution the legislature is required, in granting charters to municipal corporations, to restrict their powers of taxation. Const. § 5, art. 11. In obedience to this provision of the fundamental law, it is provided in the charter of the defendant city that taxes for general municipal purposeswhich, of course, include the payment of its outstanding obligations, unless otherwise provided in the law under which they were created-shall not exceed 8 mills on the dollar. The object of this limitation is manifestly to secure the property owner against onerous and excessive taxation, and to enforce economy in the expenditure of public money. evident intention of the legislature that the amount of revenue derived from the 8-mill tax, and no more, should be raised by the city of Portland from the taxable property of its inhabitants in any one year for general municipal purposes, and no additional amount can be collected for that purpose by an unauthorized special levy for some item of general municipal expense. If the provisions of the charter could thus be avoided, it would afford no protection to the taxpayer whatever, would be no restraint upon official extravagance, and would utterly fail to accomplish the purpose intended by the legislature and the framers of the constitution.

It was the

But it is claimed that the act of 1891, creating the defendant municipality, imposed upon it a part of the present bonded indebtedness, and authorized the creation of the remainder, and, as no express provision was made for the payment of such indebtedness, it necessarily follows that it must be paid from money raised by taxation. No doubt, this is true, but it does not follow that a special tax in addition to the general tax authorized by the

charter may be levied for that purpose. The limitation upon the taxing power contained in the act imposing and authorizing the creation of such indebtedness plainly repels the inference that the legislature intended to authorize the levy of an additional or special tax with which to pay it. It is often said that authority to a municipal corporation to create a debt implies power to raise the means with which to pay it by taxation, but this is true in a general sense only. Of course, every lawful debt of a municipality is a liability against it, and payable from its general funds, unless otherwise provided; and as the usual, and indeed, generally, the only, means a city has of raising money is by taxation, it necessarily follows that its indebtedness must be paid from the revenue thus derived. But it is not believed that mere authority to create a debt authorizes, per se, the levy of a special tax for its payment. It is quite true, as we have remarked, that the right of a municipality to incur an obligation generally implies the right to pay it by taxation, but such right must always be exercised in accordance with the provisions of the law conferring the power of taxation, and in subordination to the limitations imposed by the legislature on the exercise of such power. If, therefore, the power of a municipality to levy taxes is expressly limited to a certain amount, an authority to contract debts or incur other obligations will not alone justify an inference that the power to levy an additional tax to pay such debts or obligations was also conferred. Shackelton v. Town of Guttenberg, 39 N. J. Law, 660. It follows that the special 2-mill tax levied by the defendant municipality for the purpose of paying the interest on its bonded and other indebtedness is unauthorized and void. The decree of the court below is therefore reversed, and a decree will be entered here enjoining the collection thereof.

(30 Or. 593)

JACOBS v. OREN.

(Supreme Court of Oregon. April 12, 1897.) APPEAL FROM JUSTICE'S COURT RECORD-CORRECTION-FILING TRANSCRIPT-NEW TRIAL -TENDER BY DEFENDANT-COSTS.

1. The jurisdiction of the circuit court on appeal from a justice cannot be defeated by affidavit that the justice, in contravention of Hill's Ann. Laws, § 2055, subd. 10, failed to enter in his docket a matter material to the issue; the proper remedy being a nunc pro tunc order from the justice, correcting the record.

2. The transcript on appeal from a justice may be filed in circuit court immediately after the appeal is allowed.

3. Where defendant admitted that he owed a part of the sum demanded, a verdict in his favor was properly set aside by the trial court.

4. Where defendant alleged a tender and deposit in court of that part of the amount admitted to be due, a verdict in favor of plaintiff for that sum does not of itself show that the allegations of tender and deposit were found to be true, so as to entitle defendant to recover his costs (Hill's Ann. Laws, § 561), without a special finding to that effect.

Appeal from circuit court, Benton county; J. C. Fullerton, Judge.

Action by A. Jacobs against Levi Oren, iu justice's court. On appeal to the circuit court, plaintiff recovered judgment for a part of the amount claimed, together with his costs and disbursements, and defendant appeals. Affirmed.

This action was commenced in a justice's court of Benton county, to recover the sum of $15, alleged to be due on account of the rent of certain premises leased by the plaintiff to the defendant. The answer denies any indebtedness on said account greater than the sum of $2.50, which amount it is alleged was tendered plaintiff before the commencement of the action. A reply having put in issue the allegations of new matter contained in the answer, a trial was had, resulting in a verdict and judgment in favor of the defendant, from which the plaintiff appealed. In the circuit court the defendant moved to dismiss the appeal, assigning as a reason therefor, inter alia, that the transcript failed to show that he tendered in open court the amount admitted to be due plaintiff; but, this motion being overruled, sum of $2.50 non obstante veredicto, and for the defendant, whereupon counsel for plaintiff moved the court for a judgment for the sum of $2.50 non obstante verdicto, and for the costs and disbursements of the action. The court overruled this motion, but set the verdict aside, and granted a new trial. Thereafter the defendant was permitted to amend his answer by inserting, after the allegation of tender, the words "and now brings the same into court"; and, this matter being put in issue by the reply, another trial was had, resulting in a verdict for plaintiff in the sum of $2.50; whereupon de fendant's counsel, based upon their client's affidavit, which showed that he had deposited with the justice who tried the action the sum of $2.50, moved the court for a judgment for his costs and disbursements, which motion being overruled, a judgment was given on the verdict, and in favor of the plaintiff, for $2.50, and the costs and disbursements, from which the defendant appeals.

W. S. Hufford, for appellant. J. Fred Yates and A. L. McFadden, for respondent.

MOORE, C. J. (after stating the facts). It is contended by counsel for the defendant that the transcript from the justice's court is fatally defective, in that it fails to recite that the defendant, upon filing his answer, deposited in that court the amount of money tendered the plaintiff, and that, such being the case, the court erred in its refusal to dismiss the appeal. It was incumbent upon the plaintiff to file with the clerk of the circuit court a transcript containing a copy of the material entries in the justice's docket relating to the cause on appeal (Hill's Ann. Laws Or. § 2125); and it must be pre

sumed that this duty was fully performed, as the justice's certificate to the transcript states, in effect, that it contains a copy of every docket entry made by him in the action. If he had omitted any entry made in his docket which the trial court might have considered material to the cause on appeal, the defendant, by suggesting a diminution of the record, could have obtained a rule on the justice requiring him to complete the transcript by adding a copy of such entry thereto. 2 Enc. Pl. & Prac. 305; Elliott, App. Proc. § 217. The defendant does not claim, however, that any docket entry was omitted from the transcript, but that the justice, neglecting to comply with the requirement of subdivision 13, § 2055. Hill's Ann. Laws Or., to the effect that he shall enter in his docket all matters which may be material, failed to make an entry therein showing the alleged deposit in his court. If the affidavit relied upon to show such neglect be sufficient to defeat the apparent jurisdiction of the circuit court, it must be admitted that the perfecting of an appeal from a justice's court would be a difficult matter, and jurisdiction would be made to depend upon the showing made by the affidavits of the respective parties that the justice either did or did not enter in his docket all matters material to the issue. The method of obtaining jurisdiction on appeal has been prescribed by statute, and, when complied with, the fact is ascertainable from an inspection of the record in the appellate court, and hence jurisdiction cannot be conferred or defeated by the affidavits of the parties. If the defendant was injured by the failure of the justice to make the proper entries in his docket, he had a remedy by applying to that court to correct and amend the record made therein. Elliott, App. Proc. § 206. nunc pro tunc order, upon proper notice to the adverse party, could have been obtained and entered, thereby correcting the record; and the right to make this correction could not be denied because the action had been transferred to the circuit court, since the justice would be merely putting upon record the evidence of an order which had theretofore been duly made, and, when certified by him to the circuit court, the transcript would then be complete. It is also claimed that the transcript is defective, because it fails to show that the sureties in the undertaking on appeal justified, and that the justice failed to make an entry in his docket to the effect that the proceedings were thereby stayed. The justice is required to enter in his docket a memorandum of the undertaking and the justification of the sureties therein (subdivision 10, § 2055, Hill's Ann. Laws Or.); but, since the sureties in such an undertaking are not obliged to justify unless so required by the adverse party | (Id. § 2123), it is evident that, in the absence of such a request, there need be no justification nor entry concerning it. The justice is

A

also required to state whether or not the proceedings are stayed by the appeal. Id. § 2122. This the transcript fails to show, but we think the requirement is directory only, and intended merely to furnish a foundation for the recall of an execution which may have been issued; but, however this may be, any failure of the justice in this respect could have been corrected in the manner hereinbefore indicated, and ought not to defeat an appeal taken in the manner prescribed by law.

It is claimed that the justice made out and delivered the transcript to the plaintiff on the day the appeal was allowed, thereby depriving the defendant of his right to except to the sureties in the undertaking, and that, this being so, the appeal was prematurely taken, in which case the circuit court failed to acquire jurisdiction. This question has already been decided adversely to defendant's contention, this court holding in a late case that the transcript might be filed with the clerk of the circuit court immediately after the appeal has been allowed by the justice. Hughes v. Clemens, 28 Or. 440, 42 Pac. 617.

It is next contended that the court erred in setting aside, on its own motion, the verdict rendered at the first trial. It will be remembered that the answer admitted that there was due and had been tendered the plaintiff the sum of $2.50, but it did not show that the tender had been kept good by alleging a deposit in court, as was required by the statute. Hill's Ann. Laws Or. § 561; Holladay v. Holladay, 13 Or. 523, 11 Pac. 260, and 12 Pac. 821. "The tender," says Woods, J., in Stowell v. Read, 41 Am. Dec. 714, "does not discharge the debt, for an action lies as well after the tender as before to enforce the payment of it; and the creditor cannot maintain trover for the money that has been tendered and not accepted. On the contrary, the debtor may, from the moment it is refused, appropriate it to his own use. Indeed, the only effect of a tender is to enable a debtor who has made it, and keeps it ready for the creditor, to escape the payment of the costs of any action that may be commenced to recover the debt, by showing that he has done, and is ready to do, all that is in his power to perform his contract, and that, although the debt is not paid, it is no fault of his." Upon the .admission in the answer, it was incumbent upon the court to instruct the jury that they should find for the plaintiff in the amount so conceded to be due,-and it must be presumed, in the absence of any showing to the contrary, that this duty was fully performed (Hill's Ann. Laws Or. § 776, subd. 15),notwithstanding which they found for the defendant, clearly contrary to such instruction, in view of which the court very properly set aside the verdict, and granted a new trial. 16 Am. & Eng. Enc. Law, 552; Friendly v. Lee, 20 Or. 202, 25 Pac. 396.