Keck v. Board of Supervisors

37 Iowa 547

• Court: Supreme Court of Iowa
• Decided: December 15, 1873
• Status: Published

Opinion

Miller, J.

I. The appellees move to dismiss the appeal, because the board of supervisors alone appeal, and judgment having been rendered in their favor in the court below, there is nothing from which they can appeal. Since we affirm the judgment of the court below, we do not deem it necessary to pass upon this motion.

1. Taxation. II. By chapter 89, Laws of 1870, the township trustees of each township constitute a board of equalization of assessments for their respective townships, and have the same power to equalize the assessment of the property liable to taxation in the township, substantially the same, so far as is practicable, as is done by the board of supervisors between the several townships. The board of supervisors have power to equalize the assessments of the several townships in the county, substantially in the same manner as is required of the State board of equalization, to equalize among the several counties of the State, as near as practicable. Rev., § 739, as modified by the chapter above referred to.

It was held in Smith v. The Board of Supervisors, etc., 30 Iowa, 531, that under section 739 of the Revision that, if the board of supervisors believed the assessment of a particular “ person or township ” to be too low, they had power, at their meeting for equalizing assessments, to raise it, and on the other hand, if they believed another assessment of “a person or township ” to be too high, they had the power to reduce it. By the act of 1870, chapter 89, the power to equalize the assessments upon “persons ” is taken away from the board of supervisors and conferred upon the township trustees. The latter possess that power now to the same extent as it was possessed by the former prior to the taking effect of the act of 1870.

The latter act provides that any person aggrieved at any thing in the assessment of his property may appear before the township board, at their meeting, on the first Monday in May, in person or by agent, “ and have the same corrected in such manner as to the said hoard of trustees may seem just and equitable, and it shall be the duty of the township assessor to meet with the said board, and correct the assessment books as they may direct.” Section 3.

2. —- duty oí assessor. The plaintiffs did appear at the time specified in the statute and requested the board to reduce the assessment put upon their hank stock, by the asssessor. The board d'id order a reduction, as they had the power to do, but the assessor refused to correct the books as directed by the board, and passed them out of his hands without such correction.

The plaintiffs applied to the proper tribunal for the redress of their alleged grievances in the assessment. That tribunal, in . the exercise of its lawful power, ordered a correction of the. several assessments of the plaintiffs. The plaintiffs are lawfully entitled to have that action of the board of equalization; carried into effect. Macklot v. City of Davenport, 17 Iowa, 379.

-certiorari. It is objected by appellant’s counsel that this cannot be done in a proceeding by certiorari; that the remedy is by mandamus. The record shows that the plaintiffs and also the board of trustees supposed that the correction ordered had been made by the assessor on the assessment books; that nothing was known by them to the contrary until after the books had passed out of the hands oí the assessor. He then had no power to make the correction ordered, and mandamus would not lie to compel him to do so, nor would it lie against the trustees for they had not refused to perform their duty in the premises; neither would mandamus lie against the county auditor, for the law does not enjoin the correction of the assessment books ordered by the trustees, as a duty upon that officer. On the other hand, the illegal conduct of the assessor, in refusing to correct the books as the board of trustees had ordered, and passing the books out of his hands without such correction being, made, was being perpetuated in the hands of the county auditor. The plaintiffs are entitled to have this illegal proceeding arrested, and the only remedy open to them is by certiorari, which brings up the whole record for inspection, and on the. face of which the illegality appears. See Smith v. Board of Supervisors, etc., supra; Macklot v. City of Davenport, supra ; Edgar v. Greer, 14 Iowa, 211; McCrory v. Griswold, 7 id. 248 ; Myers v. Sims, 4 id. 500 ; McCune v. Swafford, 5 id. 552; Spray & Burns v. Thompson, 9 id. 40.

The judgment of the district court will be

Affirmed.