50 Iowa 164 | Iowa | 1878
Counsel for appellant cite Rhoads v. Booth, 14 Iowa, 575, and Fleming v. Mershon, 36 Id., 413, as being in principle opposed to such joinder of parties.
In the.first-named case it was held that two or more persons could not maintain a joint action for malicious prosecution. It is evident that in such case each party must have a
In Powell v. Spalding, 3 G. Greene, 443,it is said: “The sum of the doctrine is that, where there is unity in interest as to the object to be maintained by the bill, the parties seeking redress in chancery may join in the same complaint, and maintain their action together.”
It was held in Fleming v. Mershon that where one person commenced an action in behalf of himself and numerous others, not named, to restrain the collection of a tax, and a motion to strike from the petition so much as sought to obtain relief for any other persons than the plaintiff was sustained, from which a number of persons by name other than the plaintiff appealed, that such appeal would not lie. Upon the other question in the case, as to the right of a party plaintiff to maintain such action for himself and numerous others not named, two members of the court concurred in holding that the action in that form would not lie, one expressed no opinion, and the other dissented.
We have not thought it necessary to discuss other authorities upon this question. They are in conflict, and we are content to adopt the conclusion reached in Cooley on Taxation, believing it to be the better rule.
It is alleged in the petition that there was no assessment nor levy of the tax. It appears from the evidence that at the September session, 1875, the board of supervisors made an order in these words: •
[Plere follows the description of the land, divided into classes, with the rate per cent of the levy upon each class.]
“And the auditor is hereby instructed to levy the same in three equal annual assessments.”
At the October session, in 1875, the following order or resolution was passed:
“On motion the assessments of benefits in matter of Stewart and Bryant ditch, as made at September session of this board, is hereby revoked and rescinded, and H. B. Lyman and H. B. Cox are appointed special commissioners to reassess the benefits and report to the auditor as soon as practicable.”
■ Afterward Lyman and Cox filed, in vacation, a paper containing a list of the lands and a certain rate per cent. This paper had neither caption, certificate nor signatures. The board never afterward took any action in the matter. The auditor, without other authority, extended upon the tax books taxes against the land based upon the per centum contained in the paper filed by Cox and Lyman.
It will be observed that the allegation that no assessment and levy were made is fully supported by this evidence. When the action of the board at the September session, in assessing and levying the tax, was revoked and rescinded, if no further action had been taken the act of the auditor in extending the tax would have been wholly unauthorized.
The whole matter then stood just as though no assessment and levy had been made. What occurred afterward was in no sense an assessment and levy. It does not purport to be the action of the board. It is not a ease of an irregular and informal assessment and levy. It is one where there is an entire absence of anything in the way of exercising the taxing power. Under these circumstances, where there was no exercise of the taxing power, what appears upon the tax
Upon the question whether an injunction is a proper proceeding in resistance of an illegal tax, there has been much discussion and contrariety of opinion, but in this State it has -been fully settled.
In Zorger v. The Township of Rapids, 36 Iowa, 175, it is said: “We concede that in most cases where the interposition of a court of' equity has been invoked to restrain the enforcement of an illegal tax, it has been refused upon the ground that the remedy at law is adequate. But the jurisdiction of equity for such a purpose has been too long recognized, and too frequently resorted to in this State, to be now made a matter of serious question.”
There is a clear distinction oetween this class of eases and the cases of Macklot v. The City of Davenport, 17 Iowa, 379; Patterson v. Baumer, 43 Id., 477, and others, where it is held that injunction will not lie because of irregularities in exercising the taxing power. If the petition in this cause rested solely upon the ground that the lands of plaintiffs were not benefited by the ditch it would be but a mere irregularity, and should have been corrected upon appeal, or possibly by ce: - tiorari.
III. The plaintiffs were permitted to show, against the objection of defendants, that these lands were not benefited by said ditch. While this, in our opinion, was not proper grounds for the equitable interposition of the court, yet, we think, it was not objectionable to allow the plaintiffs to show that what appeared upon the tax books as a tax was inequitable and unjust.
Affirmed.