125 Iowa 549 | Iowa | 1904
In December of the year 1901 the county treasurer of Blackhawk county notified plaintiff and his wife that the so-called “ tax ferrets ” employed by the county had made a report showing that they were the owners of moneys, loans, and credits not listed and assessed for taxation for the years 1896 to 1901, inclusive, in various amounts, and that, unless they appeared and showed cause why the same should not be assessed, it would be listed and assessed according to law. It also appears that in January of the year 1902 the county treasurer, in a book known as “ Record of Omitted Taxes,” entered an assessment against plaintiff and his wife for the years 1896 to 1901, inclusive. This was done, however, from slips furnished the treasurer by plaintiff and his wife, showing the amount of property subject to taxation, and the taxes due thereon, as per an agreement between them and the tax ferrets. Plaintiff paid the amount of the taxes shown by these slips to be due for all the. years in question, without objection or protest, and before any entry was made upon the record of “ omitted taxes.” Indeed, it appears that, so far as this record is concerned, it waá a mere matter of bookkeeping, in order to keep track of the taxes páid by those who had failed to list their property for taxation. Nothing was done by the county treasurer, save to give the notices referred to, until after plaintiff had appeared for himself and wife, presented the slips showing the- agreement with reference to the amount of their taxes, and paid the amount so agreed upon. After all this had been done, the entry was made upon the “ omitted taxes ” record book. This action is to recover the amount of taxes paid on moneys and credits for the year
Some claim is made that the taxes in question were paid under protest, but this is not sustained by the evidence. The most that can be said in this respect is that, when plaintiff went to the tax ferrets to adjust the matter of his taxes, they told him that if others did not have to pay taxes for the year 1896 his money would be refunded. This, of course, does not make a case of payment under protest. Construing section 1374 of the Code, we have held that a county treasurer cannot maintain an action thereunder for taxes on property omitted from taxation for more- than five years from the time they should have been levied and -assessed. Siberling v. Croper, 119 Iowa 420. But this was held in an action which was a direct appeal from an assessment by the county treasurer. In the same case it is held that, under the statute there construed, the county treasurer became the assessing officer, and that he was authorized to make an assessment after notice of all property withheld from taxation during the five-year period. The record shows that the plaintiff waived his right to a hearing before the county treasurer; that he agreed with -the tax ferrets upon the amount of his tax; and that-,.pursuant to this agreement, he appeared before the county treasurer and paid the amount of his taxes so agreed upon, without objection or protest. It also appears.that no assessment was in fact made by the county treasurer, unless the notice sent to plaintiff and his wife be held to be such, and that the entries made by the treasurer upon the county records were not reduced to writing until after the payments had been made, and then only as a matter of bookkeeping, to show the amount collected and from what source. Under this state of facts it is clear that plaintiff has no right to recover, unless it be under section 1417 of the Code, which provides for the refund of
The payments were the result of a compromise,' were voluntary, and without protest. Plaintiff and his wife at all times owed these taxes; their property was wrongfully withheld from taxation; but, by reason of the delay of the county official, there was no legal remedy for their collection. Is section 1411 broad enough to permit one who has so paid taxes a right of recovery? This is the pivotal question in the case, and it must be solved by construing the words “tax found to.have been erroneously or illegally exacted or paid.” This error or illegality manifestly has reference to some mistake or unauthorized action of the officials authorized to assess and levy taxes upon property, and not to error or mistake on the part of the taxpayer. Dubuque Co. v. Supervisors, 40 Iowa, 16. The county . treasurer had the undoubted right, and it was his duty, to give plaintiff and his wife the notices he sent out, and it was plaintiff’s duty to appear before the treasurer and make a showing as to why his property should not be assessed for any year or years. Instead of doing this, plaintiff went before the tax ferrets and agreed with them upon the amount of his taxes, took the ferrets’ word that if others were not assessed for the year 1896 his money would be refunded, walked over to the county treasurer’s office, presented his slips showing his agreed assessment, and voluntarily paid his taxes for the years 1896 to 1901, inclusive, on the property omitted from taxation during those years. Under such a state of facts it was clearly the duty of the county treasurer to take the'money tendered, and to charge himself therewith as so much money collected on back taxes. To have done otherwise would have subjected the official to the sharpest criticism.
The notice given by the county treasurer was authorized, except, perhaps, that it included more than he was authorized to demand; but the payment was made pursuant to an agreement with the tax ferrets, in recognition of an
Moreover, if we treat the notice as a demand, we find that it included' taxes which were concededly due and collectible, and, if there was any error it was an over-assessment made in the exercise of lawful authority, and not an erroneous or illegal exaction as defined in section 1417 of the Code. Harris v. Fremont County, 63 Iowa, 639. It is only a tax which has been illegally or erroneously exacted which may be refunded. Iowa Co. v. Woodbury County, 64 Iowa, 212; Dickey v. Polk County, 58 Iowa, 287.
The error, to justify a refund, must be some irregularity connected with the assessment or levy of the taxes. There was nothing of that kind in this case, and therefore plaintiff is not entitled to recover.
The judgment is affirmed.