LUND v. TOWN OF PETERSBURG, 293 F. 893

HUNT, Circuit Judge (after stating the facts as above). Appellant questions the authority of the town: (

a) To levy a tax in excess of 2 per cent, annually upon the assessed valuation within the corporate limits of the city in order to provide for the payment of the bonds and interest; (

b) to sell electric energy and power to be used and consumed outside of the corporate limits of the town; and (

c) to bind itself to pay the bonds before the expiration of the period prescribed in the acts ;of Congress authorizing their issue. It is clear to us that the special act of Congress gave to the town authority to incur the somewhat unusual expense and to issue bonds as a means of paying for the improvement authorized.

The provisions of the Alaska statutes, heretofore referred to, limiting the power of the town to 2 per cent, of the assessed valuation upon all property, and denying authority to issue bonds to incur a debt in an amount in any year greater than the-current revenue for the year, relate to the use of revenues for ordinary municipal purposes. With the small population of the town and the present assessed valuation of the property, the improvements could not be had, except through special congressional enactment.

Presumably Congress acted upon knowledge of conditions and advisedly passed the legislation authorizing the town to issue the bonds here being considered. There is no constitutional limit upon the taxing power of a municipality in Alaska, and Congress, having conferred upon the town council the authority to hold an election and issue bonds for, purposes expressed, what may be termed extraordinary purposes, the authority to levy a tax to meet such authorized obligations may be implied. In Loan Association v. Topeka, 20 Wall. (87 U. S.) 660, 22 L.

Ed. 455, the general principle is stated by Justice Miller: “It is therefore to be inferred that, when the Legislature * * * authorizes a county or city to contract a debt by bond, it intends to authorize it to levy such taxes as are necessary to pay the debt, unless there is in the act itself, or in some general statute, a limitation upon the power of taxation which repels such an inference.” The reasoning is that the intention is legally to be inferred from the authority to issue the bonds, provided, always, there is nothing by way of limitation in the act creating the power or by way of inhibition in the general law or the organic act.

The decisions go to full extent in sustaining, the view that when the power to create a municipal debt exists there is a corresponding power to provide for the payment of the debt. The power to make the provision for the payment, though implied, is conclusively implied and “cannot be overcome except by express words excluding it.” County Court v. United States, 105 U. S. 733, 26 L. Ed. 1220; City of Ottawa v. Carey, 108 U. S. 109, 2 Sup. Ct. 361, 27 L. Ed. 669.

Whether there is authority in the town to sell electric current to be used outside of the corporate limits is not a question arising upon the existing rights of the parties. It is irrelevant to the material question just decided, and we express no opinion upon the matter.

In the ordinance passed by the town there is a provision (section 7) creating a sinking fund for the payment of the bonds as they mature and the interest thereon; also a provision that the town shall annually levy a tax upon all the real and personal property within the town subject to taxation in an amount sufficient to pay the interest and installments of principal due for the ensuing year, and such amounts as may be required for the payment of interest and installments shall be kept and remain in the sinking fund fo be used and applied to the payment of such interest and installments.

Another provision (section 2) is that the bonds shall mature at the rate of $5,000 each year from 1928 to 1942, and $40,000 July 1, 1943. The acts of Congress provide that the interest on the bonds shall be paid semiannually, and that the bonds must be redeemed in 20 years, with the right in the municipality to redeem them serially at the rate of not to exceed $5,000 per annum after the first five years.

Thus it will be observed that the town by ordinance has construed the Act of Congress as giving to the municipality .the right to provide that $5,000 principal of the bonds shall be paid off every year after the first five years. While there is no provision in the acts of Congress for a sinking fund, and none for the levy of a tax oñ property within the municipality, under the authorities already cited, the method and means to be used by the municipality for repayment are left to the municipal authorities.

We believe it beyond question that it was within the power of the town council, not alone to provide for a tax levy to meet the annual expenses, but also to make provision by tax levy for the creation of a sinking fund for the redemption of the bonds, and necessarily to levy a tax in „ amount sufficient to pay the interest and installments as required. McQuillin on Municipal Corporations, vol. 5, § 2345; First National Bank v. Sorenson, 65 Mont. 1, 210 Pac. 900; Scotland County v. Hill, 140 U. S. 44, 11 Sup. Ct. 697, 35 L. Ed. 351; Turpin v. Madison County Court (Ky.) 48 S. W. 1085.

The judgment is affirmed. >irnr other cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes