Powers v. Bowman

53 Iowa 359 | Iowa | 1880

Rothrock, J.

1. TAXATION : I^essmont; junsdiction. Neither party excepted to the findings of fact made by the court. The single question necessary to be determined in this case is, will equity interfere to * ’ 1 . COrrect an over assessment, and enjoin the collecfton 0£ ^axes thereon. It was held by this court in Macklot v. The City of Davenport, 17 Iowa, 379, that where taxes are erroneously assessed the remedy of a party is by application to the board of equalization for a correction of the error, and that such remedy is exclusive. That case has been followed by numerous decisions of this court running through a period of sixteen years. The latest utterance upon the subject is Nugent v. Bates, 51 Iowa, 77. In Macklot v. The City of Davenport, and other cases, a distinction is made between a tax erroneously or irregularly levied, and a tax imposed upon property exempt therefrom, or under an unconstitutional law, or the like. In the latter class of cases it is held that equity will interfere, because the levy of the tax is void, being made without authority of law, and hence without jurisdiction to make the levy. Couñsel for appellant contends that the case at bar should be held as belonging to the latter class. But we cannot so regard it. It is in all its essential facts like Macklot v. The City of Davenport. It is said it is unlike that case because in the case at bar the plaintiff assisted the assessor, and made affidavit to the correctness of the list, and that the assessor had no authority afterward, and without plaintiff’s knowledge, to insert the amount in question. But the assessor after the making of the list by the plaintiff learned the fact that he was the owner of $18,000 in mortgages. We think if he corrected the list his act was not, to say the least, void. The statute nowhere requires the assessor to accept the list and oath of fhe party assessed as true. If he has reason to believe the list is not correct he may correct it, and if in error his correction is not void.

The rule in Macklot v. The City of Davenport, as applied in some easel, is a harsh one, but it has been followed too often, and too long, to be. now questioned. It must not be understood, however, that we deem the rule to be oppressive in this case, for we doubt very much whether the note given to the wife, at a nominal rate of interest and without consideration, for the purpose of “ settling her interest in their property,” should be regarded as a debt in good faith owing by him, and founded on actual consideration within the meaning of section 811 of the Code.

Affirmed.