C., D. & M. R. v. Olmstead, 46 Iowa 316

C., D. & M. R. v. Olmstead

46 Iowa 316 | Iowa | 1877

Eothrock, J.

I. There are other causes of demurrer aside from those set forth in the foregoing statement:' It is not necessary to consider them as in our opinion the case must be disposed of upon the statute in force at the time of voting the tax in question, a construction of which we think is fairly raised by the demurrer.

i taxation: ioartfoFsupei-visors. Sec. 2 of Chap. 48, laws of 1868 provides, that * * • * “ if a majority of the votes polled be ‘ for taxation,’ ^3en 313 case ^3e township trustees * * * shall at once determine the per centum of the same, and cause their respective clerks * * * to prepare and certify to the clerk of the board of *318supervisors, as soon as practicable, lists of the same, which shall be an equal percentage on the taxable property in such township, which shall not exceed five per cent upon the assessed value of the property therein.” Sec. 3. “That so soon as such tax lists are prepared, the tax herein provided for shall be due and collectible in the same manner as the county tax is collected; and it shall be the duty of the treasurer of the county to proceed by himself or deputy to collect the same * * *.”

These are all the provisions of the law in regard to the levy and collection of the tax.

No duty is imposed upon the board of supervisors to levy the tax or to do any other act in the premises. The mere fact that the tax lists prepared by the township clerk are required to be filed with the clerk of the board, does not imply that the board shall levy a tax or do any other act. All the duty that is required in the way of a levy is imposed upon the township trustees and their clerk. The tax is collectible as soon as such tax lists are prepared, without any act of the board of supervisors. We think the demurrer of the board of supervisors was properly sustained.

2. —: ——: urer. II. The petition does not aver that the tax lists, or certified copies thereof, have ever been filed with the treasurer of the county. He is, therefore, not in possession of the necessary lists to proceed to the collection of the tax. The law imposes no duty upon him to procure the tax lists or copies thereof. If the tax is properly put upon the tax books, or placed in the hands of the treasurer for collection, some officer must be held to possess implied powers. We think, if there be any implied duty provided by the law, it is imposed upon the clerk of the board of supervisors to place the tax upon the tax books for the current year. He is charged with the duty of preparing the tax books for the treasurer for all other taxes. The demurrer of the treasurer was properly sustained.

Affirmed.