Perrin v. Benson

49 Iowa 325 | Iowa | 1878

Seevers, J.

1. taxation: neglect to levy.' As we understand, the question for determination is, where the authority of the board of supervisors is full and complete, and it is their duty to levy school-house taxes at the proper time in 1875, and they neglect to do so, whether they have the power to make such levy in 1876, at the time provided bylaw for .levying taxes.

No technical objections are interposed to the consideration of this question on the merits. It was the duty of the board to make the levy in 1875, at the time of levying other taxes. Code, § 1778. This statute, under the decisions of this court, must be held to be directory. Hill et al. v. Wolfe et al., 28 Iowa, 577; Easton v. Savery, 44 Id., 654.

We are unable to see that any prejudice resulted to the plaintiffs by the failure to levy the tax in 1875. If it had been averred in the petition that the plaintiffs had no notice at the time they purchased the real estate of the voting of the tax, and certifying the same, it is possible it could be said they were prejudiced by the action of the board. Failing to so aver the presumption must be indulged that they had such notice. Having knowledge of the facts the only remaining question was one of law.

The case of Hill v. Wolfe, before cited, is decisive of the question under consideration unless the power of the board to make the levy expired with the year 1875. There is no statute so providing, nor are we -aware of any rule or principle which requires us to so hold.

As it was the duty of the board of supervisors to make the levy, mandamus would lie to compel the performance of such duty. Suppose this course to have been taken, a disposition of such action in all probability could not have been obtained during 1875. If not the compulsory levy could not have been made earlier than 1876.

• The power of the board does not depend on the compulsory order, but on the’statute and rules of law applicable thereto. Instead of applying for mandamus, parties in interest waited until the proper time of levying taxes in the succeeding year, and then requested the board to perform their duty, or the board voluntarily proceeded to do what they had failed to do the previous year. It does not follow, because this tax could be lawfully levied in 1876, that it could be levied in 1880, or any year after the former; for it might be well said, if no levy was made in either 1875 or 1876, or any steps taken to compel one, or any expression of a desire or intent to insist on the tax, that it should be regarded as waived or abandoned.

We do not determine at what time the tax will be deemed waived because of a failure to make a levy at the time provided by law. What we do hold is, that where a levy is not made at the proper time, through negligence- or mistake, it may be made at the time fixed by law for making tbe succeeding tax levy.

Affirmed.