45 Iowa 519 | Iowa | 1877
The tools and machinery necessary for the construction and repair of highways are to be owned, not by the several road districts, but by the township. Guide boards are to be put up by the township. It is necessary, therefore, that there should be a township .fund in distinction from the several district funds.
By section 970 of the Code it is provided that “the township trustees shall set apart such portion of the road tax as they may deem necessary for the purchase of tools, machinery,” etc.' It is made the duty of each supervisor to collect the
If in this case the supervisor had succeeded in collecting all the tax the question involved in the case would not have arisen. The money to be expended by the supervisor in his district would have been retained by him. But a portion of the tax was due from non-residents, and was for that reason collected by the county treasurer, who paid the same to the defendant. The tax thus collected is the tax in controversy.
■ It will be seen at once that it did not become a part of the general township fund by reason of its having come through the county treasurer’s hands to the defendant.
If it became a part of the general township fund it 'was because it was necessary to regard it as a part se,t apart by the township trustees as such fund. Whether the plaintiff had previously paid over to defendant the amount to be collected, and paid over as a part of the general township fund does not appear from the petition. If he had not, it is clear.that the defendant should retain the money, or so much thereof as is due from the road district to the general fund. There is some doubt, therefore, as to the sufficiency of the petition; but the defendant has not made this point. On the other hand, it seems to be assumed that if the defendant has a right to hold the money as under the control of the township trustees, it is not upon the ground that it is due to the general fund as money originally set apart for that purpose.
To show that it did pass into the control of the trustees, the defendant cites and relies upon section 996 of the Code, which provides in substance that the trustees at their meeting
The funds spoken of are the funds in the hands'of the township clerk; and it is urged with much force that the statute means all the funds in the hands of the clerk, including, not simply those set apart for the general township fund, but those in the hands of the clei’k which can be expended only by each supervisor. As those funds, however, would have been expended by him without coming into the hands of the clerk, if they had been collected by the supervisor instead of the county treasurer, the fact that they came into the hands of the clerk seems to be a mere incident to the mode of collection. It does not divert their use; it should not, we think, change their character. There is an absurdity, indeed, in charging the trustees with the duty of distributing the funds as they may deem expedient for highway purposes, when the destination of the funds is fixed by law, and there is no discretion to be exercised by the trustees in regard to it. Code, Sec. 982.
■ We come, then, to the conclusion that the funds of which distribution is to be made by the trustees as they may deem expedient for highway purposes, as provided in section 996, are such unexpended balance as there may be of the money originally set apart by the trustees as the general township fund; that all other money is to be expended necessarily by each supervisor in the road district in -which it is collected, and that the fact of its coming into the hands of the clerk is a mere incident to its collection.
It follows that the demurrer to the defendant’s answer •should have been sustained, and the judgment of the District Court must be
Reversed.
