6 P. 124 | Idaho | 1885
This action was commenced in December, 1883, to recover certain special taxes, which were alleged to have been levied without authority of law, and to have been paid under protest to the defendant, as tax collector of Custer county. The defendant answered, alleging that the tax was levied by the board of county commissioners of the county of Custer, under the provisions of an act of the legislative assembly of the territory entitled “An act to authorize the county commissioners of Lemhi and Custer counties to issue and negotiate bonds, and for other purposes.” The answer further averred that prior to the levy of the tax in question steps had been taken by the commissioners of Custer county to have said bonds engrave'd and printed in accordance with the provisions of the act, and that certain members of the board had endeavored in good faith to negotiate and sell the same. The answer admitted that the bonds were not negotiated, and hence it follows that at the time of the levy, and up to the time of answering, no portion of the bonds or interest thereon was necessarily to be provided for by taxation. Judgment for plaintiff in trial court, and defendant appealed.
Counsel for appellant contend that the levy was authorized by section 3 of the act mentioned, which is as follows: “For the payment of the interest and principal of said bonds, the boards of county commissioners of the respective counties shall, at the time of the levy of other county taxes, include therein a levy of sufficient tax upon all the taxable property in the county to pay the interest, and such part of the principal, if any, as will, according to the terms thereof, become dué during the ensuing year.” This section authorized the commissioners to levy sufficient tax to pay the interest accruing on the bonds, and such part of the principal, if any, as would, according to the terms thereof, become due during the then ensuing year. It is a well-settled principle of law that taxes cannot be levied or collected at any other time, or in any manner, nor for any other purpose, than that designed by law. (Desty on Taxation, 464.) Applying this rule, we think the levy to provide for the payment of interest or principal of any such bonds before they were issued
The second question is whether the plaintiff is in a position to recover the tax so levied and paid by him. In Erskine v. Van Arsdale 15 Wall. 77, the court say: “Taxes illegally assessed and paid may always be recovered back if the collector understands from the payor that the taxes are regarded as illegal, and that suit will be instituted to compel the refunding of them/'’ We think the allegation in the complaint that before paying said taxes the defendant was notified in writing that the taxes were claimed to be illegal and void, and that suit would be commenced against him to recover the same, is sufficient, and that the complaint, as a whole, supports the judgment. (Cooley on Taxation, 568.)
Judgment affirmed.
