Dillon, Oh. J.
i Tases. pawtowrong distnct. This is a peculiar case, and yet the court, availing itself of the analogies of the law and regarding the consequences of adoptjng a principle which would sanction a recovery in a case like the present, have had but little real difficulty in determining it.
Since the evidence is not in the record, the facts found and reported by the referee must be taken as true.
On those facts was the plaintiff entitled to judgment? The ground of the action, as stated in the petition, is, that the moneys collected were the proper moneys of the plaintiff, and were, by mistake of the county treasurer, paid over to the defendant, when they should have been paid to the plaintiff.
.The case reported by the referee however is'not precisely this, but somewhat different. The main mistake was not on the part of the county treasurer, but occurred at an earlier period than the receipt of the taxes by that officer.
*328The school laws in force during the period embraced in this controversy allowed the school districts to determine the 2>&r centum or rate of taxation on the taxable property of the district; this was to be certified to the county authorities, first, the county judge, and afterward the supervisors, whose duty it then became at the time of levying other taxes to levy the per centum or rate thus .certified upon the taxable property of tbe district. In dire time it would become and was made tbe duty of tbe .county treasurer to collect tbe school tax thus levied, and pay- it over to the proper school officers. Now, it is ■found that both plaintiff and defendant fixed upon the rp.te or per centum of taxes each desired, and each caused “the .same to be certified to the county authorities, and that these ievied the tax. The orders or resolutions by which tiie tax was levied are not reported, but they were undoubtedly in general terms, and did not undertake to fix or describe by numbers tbe property on wbicb tbe levy was made. The taxable property is ascertained by tbe township assessor. This work is done before tbe tax is levied. Each township lias its assessor. As a rule each civil township is also a school district. But, in the case at bar, part of the civil township of Clinton was (as found by the referee) attached to Bapids township for school purposes. This fact was unknown to or forgotten by the clerk of tbe board of supervisors, whose duty it is to make out the tax lists and keep each different tax distinct. He supposed that all the land in the civil township of Clinton belonged to the district township of Clinton, and carried out and completed bis tax lists accordingly.
Now, it is evident that the last step taken toward collecting ten per centum or tax certified up by tlie plaintiff was tbe levy. The county officers made the order for the levy and there stopped. This rate, that is, the rate or per *329centum demanded by tbe plaintiff and ordered by tbe county authorities, was never carried out on the tax lists or books, but, instead thereof, another rate or per centum, viz., that certified up by defendant. The referee finds that the tax levied by the county authorities for the plaintiff “ was never collected,” but another and different tax, to wit, that certified up by the defendant.
If this be so, the money collected by the county treas^.s urer did not belong as of legal right to the plaintiff, afid if so, the basis of this action fails. 5 ; \
2.-money had and receiv- !. —money had and received: estoppel, On the foregoing view the court places its judgment,,. but there is another which it seems .... ,, n n equally satisfactory and equ ally against the plaintiff’s action. -r,.
This I proceed to express without committing the' court to its soundness.
The plaintiff’s action is for money had and received. Such an action ex equo et bono, and rests upon an equitable basis.
It appears from the answer and record that here there was a dispute between the two districts respecting their boundaries. Each claimed the territory in question to belong to, it. Instead of settling this question in some legitimate mode by mandamus, quo warranto or other appropriate proceeding, the controversy as to boundaries was permitted to remain open. Under such circumstances, if one district allows the other to lery and collect or receive taxes from year to year, and expend them to meet the annual wants of the district so receiving them, I am ready to hold that the corporation permitting this to be done (whatever other remedy it may have or might have had) cannot maintain therefor an action for money had and received. Such a case differs from The District Township of Norway v. The District Township of Clear Lake, 11 Iowa, 506.
*330The view above expressed rests upon principles of public policy, similar to those which deny to a party who voluntarily pays an illegal or unconstitutional tax the right to recover it back.
Again, the record shows the name of each tax payer who, from year to year, paid the taxes now sought to be recovered. These taxes were demanded and collected under and by virtue of a levy, which, as before shown, was never made.
It seems to me that the right of action on the part of the tax payer is just as strong as that of the plaintiff, and yet if the tax payer should sue, he could not recover if his payment was not compulsory, although the defendant had no legal right to the taxes it received.
We unite in the conclusion that the judgment rendered by the District Court must be reversed, and the cause remanded for a new trial.
Reversed.