Harwood v. Brownell

48 Iowa 657 | Iowa | 1878

Day, J.

1. taxation: ’statute oi limitations. I. Appellant first discusses and mainly relies upon the seventh ground of demurrer, that it appears from the face tiie petition that the cause of action is barred hy the statute of limitations. It will greatly conciuee clearness if we keep distinctly in view the relief sought in plaintiff’s petition. The petition asks simply — First, that the treasurer be required to enter this tax on the tax book of the current year, as a tax due on the assessment of 1868; second, that he demand immediate payment of said tax of the persons liable to pay the same; third, that should said tax-payers fail for sixty days to pay the tax he proceed to make the same by distress and sale of personal property, and that he advertise and sell lands as by law required.

The relief demanded respecting the entry of the tax upon the tax books is in effect that the treasurer shall comply with the provisions of section 845 of the Code, which is as follows: “The treasurer, on receiving the tax book for each year, shall enter upon the same in separate columns, opposite each parcel of real property, or' person’s name on which or against whom any tax remains unpaid for either of the preceding years, the year or years for which such delinquent tax so remains due and unpaid.” This duty is one which is renewed, and has an inception every year. Whenever a new tax book comes into the possession of the treasurer a duty arises to enter upon it the taxes remaining unpaid for the previous years.

It is difficult to see how the right to enforce a performance of this duty can be barred by the statute of limitations. It is quite clear, we think, that it cannot be barred so long as the right to enforce the collection of the tax exists. This tax was voted under the provisions of chapter 48, Laws of the Twelfth General Assembly. Under section 3 of this act, and the averments of the petition, this tax became due and collectible on the 1st day of January, 1869, for on that day, the petition alleges, the township clerk certified to the clerk of the board of supervisors a list of said tax in accordance with the provisions of chapter 48, Laws 1868. The petition further avers that the treasurer proceeded to the collection of said tax, and between the month of November, 1868, and March 1, 1869, collected about the sum of eight hundred dollars. Conceding, then, for the purposes of this case, that sub-division 3, section 2529 of the Code, applies to this proceeding and bars the action to compel the collection of the tax in three years, the statute, under the averments of the petition, commenced to run on the 1st day of March, 1869, and the action would have been barred on the 1st day of March, 1872. On the 17th day of February, 1872, chapter 2, Laws 1872, took effect.

In Harwood v. Case, 37 Iowa, 692, which was a proceeding for a writ of mandamus to compel the collection of the tax now in controversy, we held that the provisions of chapter 2, Laws 1872, apply to a tax voted under chapter 48, Laws 1868. Section 1, chapter 2, Laws 1872, prohibits county treasurers and township collectors from collecting any tax voted in aid of a railroad under chapter 102, Laws 1870, in violation of the provisions of any special reservation or condition inserted in the notices calling the election, or contrary to any contract, agreement or stipulation in writing made between the railroad company to be benefited by the tax and the township, town, or city authorities, for the benefit of the people. Section 5 of this chapter provides that when the trustees of any township certify to the county treasurer that the railway company has, in all respects, complied with the statutes, and with all contracts and agreements referred to in section 2 of the act relative to such tax, and is entitled thereto, the treasurer shall give sixty days’ notice thereof, by publication in some newspaper published in the county, and if there be no such newspaper, by posting three notices in the township from which the tax is collectible. And from the time of giving such notice, and not before, the tax shall become delinquent.

Chapter 50, Laws 1872, makes the provisions of the chapter above considered applicable to a tax voted under chapter 48, Laws 1868. The running of the statute was suspended by chapter 2, Laws 1872, until the township trustees complied with the provisions of section 5 thereof. The township trustees refused to give the certificate required of them, and this gave rise to Harwood v. Quinby, 44 Iowa, 385, in which the duty to execute such certificate was declared. The petition alleges that the township trustees made this certificate on the 14th day of December, 1876, and the defendant gave the notice required by chapter 2, Laws of 1872, which was completed March 3, 1877. Then the duty of the treasurer to collect this tax revived, and, if the statute of limitations applies, it then began to run. Chapter 10, Laws of 1872, refers to taxes voted under chapter 102, Laws of 1870, and is not applicable to this case. It follows that the action is not barred by the statute of limitations.

a. —:-: tax took. II. It is insisted that it is not the duty of the defendant to extend this tax upon the tax books for the year 1877, because the tax hg,s never been entered upon the county tax book. The law under which this tax was voted provides that, if a majority of the votes polled be for taxation, the 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 supervisors, as soon as practicable, lists of the same, which shall be an equal percentage on the taxable property in such township, but shall not exceed five per cent on the assessed value of the property therein. The vote in question was had on the 29th day of October, 1868. The petition alleges specifically that all the requirements of this statute were complied with; that the township trustees determined the per cent of said tax to be five per cent on the assessed valuation of the township, and ordered the clerk of said township to certify a list of said tax at said rate to the clerk of the board of supervisors; that the township clerk, about the first day of January, 1869, certified to the clerk of the board of supervisors a list of said tax, in accordance with said trustees’ order; that the clerk of the board of supervisors delivered said tax list to the county treasurer.

It is now urged that this tax cannot be extended upon the books as unpaid taxes of previous years, and consequently cannot be collected, because it was not originally entered upon the county tax book for the year 1868. The law nowhere requires this to be done.' The law requires that the county tax list shall be delivered by the clerk of the board of supervisors to the treasurer by the first Monday in November. This tax was not voted until the 29th day of October, and it was not certified to the clerk of the board of supervisors until the January following. We cannot hold, in the absence of any provision upon the subject, that the validity of this tax depends upon its being extended upon the county tax book for the current year. In Chicago, Dubuque & Minnesota Railroad Company v. Olmstead, 46 Iowa, 316, apparently relied upon by appellant, it did not appear from the petition that any list of the taxes had been placed in the treasurer’s hands. The point whether the treasurer would be authorized to proceed upon a tax list made out by the township clerk and furnished to the treasurer by the clerk of the board of supervisors was not involved in that case.

3 _._. warrant. III. It is claimed that the defendant is under no obligation to extend this tax upon the tax list for 1877, nor to collect the same, because it is not averred in the petition that the clerk of the board of supervisors attached to the list a warrant requiring the treasurer to collect the taxes therein levied. The provision requiring such warrant is contained in section 748 of the Revision, and applies to the general county tax list required to be delivered to the treasurer by the first Monday in November. No such provision is made respecting the tax in question. The law under which the tax was voted provides “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- and to pay it into the treasury of such county. ” The tax list and the law confer upon the treasurer all the authority he requires, and impose the duty of proceeding to collect.

The provision that the tax shall be due and collectible in the same manner as other county tax is collected, refers to the means to be adopted to obtain payment, and not to the precedent steps necessary to constitute a legal tax or authorize its collection. The above discussion disposes of all the objections which require separate notice. The petition seta forth sufficient grounds for the relief demanded.

The demurrer was properly overruled.

Affirmed.