Barnes v. County of Marshall

8 N.W. 677, 56 Iowa 20

• Court: Supreme Court of Iowa
• Decided: April 21, 1881
• Status: Published

Opinions

Adams, Ch. J.

1. ■PA-ns ¡ county. A local aid tax is not collected for the benefit of the county, but for the benefit of the corporation that is to be aided, and in contemplation of law, for the benefit of the townships voting the aid. The tax is to be paid to the county treasurer, and deposited in the county treasury. If the county should wrongfully appropriate the same to its. own use, it would, we presume, become liable therefor. In this case the petition shows that the tax is still in the treasury. The only complaint made of the county is that its board of supervisors have refused to audit and allow the claim, and have refused to cause a warrant to be drawn therefor. The question presented is as to whether the county is liable for such refusal. It certainly is not unless the plaintiffs’ right was affected by the refusal.

Taking the averments of the petition to be true it was the duty of the county treasurer to refund the tax. Chapter 102, section 3, session laws Thirteenth General Assembly. This we think he might do without any order of the board. In Butler v. The Board of Supervisors, 46 Iowa, 327, it was, to be sure, intimated that in a supposed case it would be proper for the board to order a local aid tax illegally collected to be refunded. See, also, Lauman v. The County of Des Moines, 29 Iowa, 310, in regard to the obligation of a county to refund a tax illegally collected. Biit in the case at bar the tax was not illegally collected. The plaintiffs’ right rests solely upon the fact that the tax was paid more than two years prior to the commencement of the action, and had not been earned by the company. The tax, we think, was refundable by simple demand upon the treasurer. If it was refundable only upon a warrant duly drawn by the county auditor, the sanction of the board would be necessary. Code, § 321. But the tax was refundable without a warrant, unless the tax was j>ayable to the county. Code, § 327. It was payable to the county treasurer, and was, when paid, to be deposited in the county treasury. But it should be kept' as a distinct fund, subject merely to the rights of the company and special tax-payer. In no event eould the county acquire any beneficial interest therein. It follows, we think, that in case of misappropriation by the county treasurer, or loss in any way without the fault of the county, the loss should fall upon the company or special tax-payer, and not upon the county or general tax-payers. The plaintiffs’ claim, then, is strictly a claim against the fund, and not against the county. Such,being the case it appears to us that it was not one to be audited and allowed by the board, and a warrant to be drawn therefor. If so the plaintiffs’ tax should have been refunded by the treasurer upon demand, and the county did not become liable by reason of. anything which the board omitted or refused to do.

If, as the parties intimate in their arguments, the tax is not in the treasury, but was misappropriated by the predecessor of the present treasurer, it cannot, of course, be refunded (except by way of reimbursement for loss from a different fund, which we hold would be improper) nor would the present' treasurer be liable therefor.

In our opinion the demurrer was properly sustained.

Affirmed!