72 Iowa 149 | Iowa | 1887
I. The following facts are shown by a stipulation filed in the case: The electors of Newton township,. Jasper county, voted a 3 per centum tax to aid in the construction of the New Sharon, Coal Valley & Eastern Railroad. The taxes were levied by the supervisors, and plaintiff and his assignors paid the sums assessed against their property. The tax was subsequently declared illegal and void by a decision of this court. Manning v. Mathews, 66 Iowa, 675. The taxes were paid by the tax-payers, or many of them; some paying to the treasurer of the county and
II. The money in the hands of the treasurer does not belong to the county, nor is the railroad company entitled to it. It is the property of the tax-payers, as it was illegally collected. Code, § 870, provides that the board of supervisors of a county shall direct the treasurer to refund to the taxpayer any tax illegally collected. If the supervisors, under this section, and their general powers to exercise control over funds in the treasury, are authorized to direct and require the treasurer to refund the taxes illegally collected in this case, the tax-payer is not entitled to recover a judgment against the county for the amount of the taxes paid by him. See Barnes v. Marshall Co., 56 Iowa, 20. Neither is he entitled to a judgment in the nature of an order requiring the county to direct the treasurer to repay the taxes, or to direct the supervisors to issue au order to the treasurer to that effect, for these obvious reasons: The duty of the treasurer to repay the taxes, and of the supervisors to require him to do so, pertains to the discharge of their official functions as officers of the county, a political corporation, an ideal being, which has no actual physical existence, and can only act and is only known through these and other officers. This being has no capacity to require its officers to act. Therefore the
Our conclusion is supported by these considerations: Under the judgment asked by plaintiff, and rendered hy the court below, the county would be liable in case of its default or failure in causing the amount due plaintiff to be paid by the treasurer. If the monef received from the tax-payers for any reason did not remain in the hands of the county treasurer, the county must make good the fund, and pay plaintiff the amount he would be entitled to recover therefrom. But, 'under the law and the decision of this court, the county cannot be made liable for any part of railroad taxes paid into the county treasury.
It is our opinion that the judgment of the district court ought to be . Beveesbd.