Fall v. Mayor & Common Council of Marysville

Baldwin, J. concurring.

This is an action to enjoin the collection of a tax assessed by the defendants upon a bridge within the corporate limits of the city of Marysville. The charter of the city contains a clause in these words : “ The Common Council shall have power within the city to construct a bridge across the Tuba river at the southern extremity of the public plaza, or to authorize the construction upon such terms as to a division of the proceeds from the tolls as may be just, and to regulate the rates of tolls.” The bridge was constructed under the authority of an ordinance passed in pursuance of this clause of the charter, and was subsequently conveyed to the plaintiff, against whom the tax in question was assessed. The franchise was granted by the ordinance for the period of twenty-five years; and it is provided, that at the expiration of that time, the bridge, as well as the franchise, shall revert to the city. The grantees are to pay to the 'city five per cent, of the tolls collected, and to deliver the bridge free of expense, etc., upon the termination of the grant. The plaintiff contends that under these provisions the city is to be regarded as the present owner of the property, and that the assessment of a tax upon it for municipal purposes is a nullity. We take *393a different view of the matter, and look upon the city as having only a reversionary interest, subject to which the entire property is vested in the plaintiff. All that the city possessed was the franchise, and in parting with that, she parted with her whole interest for the period mentioned, reserving nothing but a reversionary right. There is no doubt, therefore, that the plaintiff has a taxable estate in the property, and so far as his right to maintain this suit is concerned, it is immaterial that the property has been assessed at its full value. The objection on that ground does not go to the validity of the tax, but to its amount, and au application for its reduction was the only remedy. The property was not taxable beyond his interest in it, and in legal effect, the tax upon it amounted to nothing more than a tax upon his interest.

Judgment reversed and cause remanded.