Collins v. Davis

Dec 8, 1881
Reporters:
,
Before:
Day
Day, J.

i. MTOneiPAi. eori>ovai.ions: eertionri: wluviaay maintain. I. Thе first and second grounds of demurrer, which the court overruled are as follows: 1. Because the plaintiff in said application has not such interest in the ... ,, ,. ,, . . . . , . subiect-matter ot this suit as authorizes him to 0 bring the same. 2. Because plaintiff has no legal right to sue.

The plaintiff alleges that he is a resident taxpayer of the city of Keokuk, and that the receipt of the money upon the reduced assessment of $17,000 was illegal, and void, and without authority of law, and contrary to the best interests of the city of Keokuk and ‍‌​​​​‌​‌​‌​‌‌‌‌‌‌‌​‌​​‌‌‌‌​​‌​‌‌‌‌​‌‌​​‌​​‌​‌‌‌‌‍the taxpayers of said city, and tlie whole amount of the tax could have been collected from the Commercial Bank. It may be conceded that in some other States a rule has been adоpted which would deny the right of the plaintiff to maintain this action. See Doolittle v. The Board of Supervisors of Broom County, 15 N. Y., 155; Roosevelt v. Draper, 23 N. Y., 318; Craft v. Commissioners of Jackson County, 5 Kas., 518. These cases hold that it requires some individual interest distinet from that which belongs to every inhabitant of a town or county to give the party complaining a standing in court, where it is an alleged delinquency in the administration оf public affairs which is ealled in question, and that the fact of owning taxable property is not such a peculiarity as takes the case out of the rule. A different rule, however has been adopted in this State. In State ex rel. Rice v. Smith, 7 Iowa, 186, and State ex rel. Byers v. Bailey, Id., 390, it was held that in a matter of public right any citizen may he relator in an аpplication for a writ of mandamus. In Collins v. Ripley, County Judge, 8 Iowa, 129, it was held that a citizen and resident of a county interested in the ‍‌​​​​‌​‌​‌​‌‌‌‌‌‌‌​‌​​‌‌‌‌​​‌​‌‌‌‌​‌‌​​‌​​‌​‌‌‌‌‍public welfare may petition for and obtain an injunction to restrain a *259public officer from the commission of an act which would be a public wrong. In Rice v. Smith, County Judge, 9 Iowa, 570, it was held that persons who are сitizens, voters, and taxpayers of a county may be parties plaintiff in an action to restrain by injunction the expenditures of county monеys by the county judge, in the erection of a court-house at a place which is not the county seat of the county. In Cornell College v. Iowa County, 32 Iowa, 520, this court employеd the following language: “We entertain no doubt that where the board of supervisors assume the exercise of powers not conferrеd upon them by law, or fail to discharge their duties, so as to involve a breach of trust, a court of equity will, at the instance of a taxpayеr, afford appropriate relief.” The city, council of the city of Keokuk is intrusted with the management of its fiscal and municipal conсerns. The petition alleges that the city council has acted illegally, and in excess of its authority in the reduction of the tax in question. Of cоurse, it cannot be expected that the council will institute any proceeding to review and reverse ‍‌​​​​‌​‌​‌​‌‌‌‌‌‌‌​‌​​‌‌‌‌​​‌​‌‌‌‌​‌‌​​‌​​‌​‌‌‌‌‍its own action. Unless, therefore, a citizen and taxpayer of the city can invoke judicial aid, no remedy is afforded, and the council may violate the law with impunity. If the аct complained of was one imposing an illegal tax upon the plaintiff, he might safely wait until an attempt to enforce the tax should be made. But the act complained of here imposes no tax. It remits a tax to which it is alleged the city is entitled, and thus diminishes the revenue of the city. Unless a taxpayer can interpose for the prevention of such wrong, the city is absolutely without remedy. We are of opinion thаt the first and second grounds of demurrer were properly overruled.

II. The third ground of demurrer is as follows: “Because the acts and matters of whiсh plaintiff complains are not judicial, and defendants are not acting judicially in the matter of which the plaintiff complained.” This ground of dеmurrer the court sustained. That the ac*260tion of the city council in receiving and passing upon the petition of the bank for the reduction оf its taxes, was a judicial act, and that it may be reviewed by certiorari is sustained, we think, by the following authorities: Royce v. Jenney et al., 50 Iowa, 676; Jordan v. Hayne, 36 Iowa, 9; Ryan v. Varga, 37 Iowa, 78; District Township of Taylor v. Moore, 39 Iowa, 605; Smith v. Powell, 55 Iowa, 215.

The court erred in sustaining the ‍‌​​​​‌​‌​‌​‌‌‌‌‌‌‌​‌​​‌‌‌‌​​‌​‌‌‌‌​‌‌​​‌​​‌​‌‌‌‌‍third ground of the demurrer.

3,_. r6_ sesaments :JS authority of council. III. The fourth ground of demurrer is as follows: “Because the petition shows that said claim against the defendant, the Commercial Bank, of which plaintiff complained, and for which he brings this action, had been considered, passed upon, and settled by said council, and the clerk by authority had received the amount required, and issuеd a receipt for the same, by which the entire transaction had been closed, long before the commencement of this suit.” This ground of demurrer the court also sustained. From the petition it appears that more than six months after the delivery of the duplicate of taxes tо the collector, the Commercial Bank presented a petition to the city council claiming that the assessment was erroneоus and excessive, and asking that an equitable amount due from the bank be ascertained, and that the city council then adopted a rеsolution that the assessment against thebank be fixed at $17,000, and that the collector be authorized to receipt for the taxes on pаyment of the amount due on an assessed value of $17,000. It thus appears that the city council.did, long after the duplicate of taxes was delivered to the collector, reduce the assessment from $35,000 to $17,000. The charter of the city of Keokuk provides: “That the said council shаll have power, on complaint of any person aggrieved, to correct or amend any illegal or erroneous assessment bеfore making out or delivering such duplicate to the collector.” No authority is conferred upon the council to make any correction or emendation of an assess*261ment after tlie delivery of the duplicate to the collector. Upon the other hand the existence of such authority is by implication denied.. In reducing the assessment at the time it was done the council exceeded their jurisdictiоn, and acted illegally, ‍‌​​​​‌​‌​‌​‌‌‌‌‌‌‌​‌​​‌‌‌‌​​‌​‌‌‌‌​‌‌​​‌​​‌​‌‌‌‌‍and without authority. The fact that an illegal act has been consummated constitutes no reason why parties interested or aggrieved should be denied a remedy. In our opinion the court erred in sustaining this ground of the demurrer.

4. pbactice : demurrer. IY. The remaining grounds of the demurrer are as follows: “ 5. Because the city of Keokuk had been compelled to bring suit against said bank, and therefore took a less slun jn fu]j satisfaction оf said claim than at the time in litigation, and said suit by reason of the payment by said bank of the required amount has, upon production of the receipt of the collector for said taxes, been marked settled and dismissed. 6. Because said city council, and these defendants, havе the right absolutely to compromise and adjust any claims for or against the city, and compromise or adju‘st any litigation for or against the сity, and such action is not a subject-matter for review herein.” It is a sufficient answer to these grounds of demurrer to say that it does not appеar upon the face of the petition that the city of Keokuk brought suit against the bank for the collection of said taxes, nor that any litigаtion was pending between said bank and the city. It needs not be stated that a demurrer to a petition can be predicated only upon matters appearing in the petition. Upon the defendants’ appeal the judgment is affirmed. Upon the plaintiff’s appeal,

Reversed.