Polk v. Winett

37 Iowa 34 | Iowa | 1873

Cole, J.

The question involved by the demurrer to the answer is, whether the board of supervisors having already levied a tax for the current year to the full limit of its power to levy for ordinary and bridge revenue, may be required to levy a further tax for the payment of a judgment rendered upon warrants issued for ordinary expenses and bridge purposes % The circuit court answered this question in the affirmative. The defendants appeal and insist upon a negative answer.

This question was, in effect, answered in the negative, by the majority opinion in the case, of The Iowa Railroad Land Co. v. Sac County (decided at the present term,) where it was held that a board of supervisors had no power or authority to ldvy a tax to paya judgment rendered upon warrants issued for ordinary and bridge revenue, where they had in the same year levied the maximum rate allowed for those purposes. The writer hereof dissented from that holding. But we are quite agreed in the opinion that, if the board of supervisors have no power or authority, under the statute, to levy a tax to pay such a judgment, a court cannot confer upon them the power, and hence cannot compel them by mandamus to levy the tax. For, it is well settled that mandamus, in such cases, can only issue to compel a board or officer to do that which the law authorizes and requires to be done. McCready v. Sexton, 29 Iowa, 356.

The members of the court severally adhering’ to the views-expressed in the opinions filed in the case of The Iowa Railroad Land Co. v. Sac County, supra, it follows that the judgment in this case must be Keversed.