165 Iowa 465 | Iowa | 1914
This action was originally brought in the year 1911 against the then members of the executive council of the state composed of the Governor, Secretary of State, Auditor of State, and Treasurer of State, who are ex officio made the Board of Review for the equalization of taxes among the several counties of the state, and charged with the duty of assessing railway, express and freight, telegraph, telephone, and equipment companies, doing business in the state. The then defendants filed several demurrers to the petition as amended, and on December 12, 1912, these demurrers were overruled and exception taken. Thereafter, and on the 22d day of April, 1913, the personnel of the executive council having changed, plaintiff filed a motion to substitute the newly elected members in place of the retiring ones, and on the same day an order of substitution was made and entered of record. On the 26th day of the same month, these defendants having appeared, they elected to stand on the demurrers theretofore filed, and a decree was entered against them, which, among other things, provided:
That you, the aforesaid defendants, the Executive Council of the State of Iowa, as and constituting the State Board of Review, George W. Clarke, Governor of Iowa, ¥m. S. Allen, Secretary of State of Iowa, John L. Bleakly, Auditor of State of Iowa, and W. C. Brown, Treasurer of State of
Appeal was taken May 15, 1913, but no supersedeas or restraining order was obtained from this court or any of the judges thereof. It is conceded by all parties that the
That since the commencement of this cause and the hearing and decision of the same upon demurrer the defendant Beryl F. Carroll has ceased to be Governor of Iowa, and that Geo. W. Clarke has since become and now is the Governor of the state of Iowa; that since the commencement of this cause and the decision of the same upon demurrer, the defendant Win. C. Hayward has ceased to be Secretary of State of Iowa, and that Wm. S. Allen is now the Secretary of State; that since the commencement of said cause the hearing and deci
There is nothing here to indicate that these defendants were refusing to do their duty or to perform any ministerial or other act in the premises. It seems to be very well settled that mandamus will not be granted in anticipation of a supposed omission of duty, and mere statements of a purpose not to perform will not take the place of such default. Mystic Co. v. Temple R. R. Co., 131 Iowa, 10; Chance v. Temple, 1 Iowa, 180; Potts v. Tuttle, 79 Iowa, 253; State v. School Dist., 8 Neb. 92; State v. Gracey, 11 Nev. 223; Ex parte Ivey, 26 Fla. 537 (8 South, 427); Wood v. Farmer, 69 Iowa, 533; Spiritual Society v. Randolph, 58 Vt. 192 (2 Atl. 747). In the latter case the court said:
The petition also prays that the writ be issued against the ‘successors in office’ of the defendants, directing them in the future, so long as the petitioner is entitled, to award to the petitioner its proper share of said fund. In other words, the court is asked, in advance of any neglect of duty by officers not yet elected, and who, when elected, for aught that appears, may do all that the petitioner may ask, to make a standing order that they divide this fund in compliance with the petitioner’s claim. This plainly cannot be done. There are no persons in existence to whom to direct the writ. The presumption, in the absence of proof to the contrary, is that officials charged with the performance of an official duty will perform it properly. There is no neglect of duty, therefore, which in this class of cases is the ground and reason for the issue of the writ.
The duty of equalizing township and town assessments rests upon the county board of review, and it has no power to raise or to lower individual assessments. That duty rests upon the township or city or town board.
While the present defendants were brought into the ease and stood,upon the demurrer theretofore filed by their predecessors, they did not admit any fact not properly pleaded as against them. They did not, by coming into the case, assume any of the faults of their predecessors, and cannot be held liable save upon allegations made against them. The court in passing the final decree was not justified in rendering a decree which was without support in the allegations made against these appealing defendants. Without reference to the merits of the demurrer filed by their predecessors, no decree should have been entered against them, save it had support in the allegations of the petition. Code, section 3,565; Brown v. Mallory, 26 Iowa, 469; Musser v. Hobart, 14 Iowa, 248.
It is very clear to our minds that the trial court was in error in entering the decree which it did, and that it should be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Our only doubt arises out of the conceded fact that the defendants have acted presumably in accord with the decree as entered, and the question presented may be said to be largely a moot one. But in view of the fact that some attempt may be made to enforce the peremptory order returnable August 1, 1913, by process of contempt or otherwise, it has been deemed advisable to consider the merits of the decree as entered, with the results heretofore indicated. The decree will therefore be — Reversed.