Oregon Short Line Railroad v. County of Gooding

196 P. 196, 33 Idaho 452, 1921 Ida. LEXIS 12

• Court: Idaho Supreme Court
• Decided: February 25, 1921
• Status: Published

Opinion

EICE, C. J.-

Appellant brought this action to recover a certain sum of money paid as taxes to respondent under protest. It stands admitted that on the second Monday of April, 1916, there were no outstanding county warrants which had been previously issued by respondent. Notwithstanding that fact, the board of county commissioners levied one mill on each dollar of taxable property in the county for the redemption of outstanding county warrants. Respondent claims to have acted under the authority of 1913 Sess. Laws, chap. 58, sec. 99 (now C. S., see. 3217), which reads in part as follows: “. . . . and upon the same property and for the same year, the said board must levy a tax for the redemption of outstanding county warrants issued prior to the second Monday of April in said year, to be collected and paid into the county treasury and apportioned to the county warrant redemption fund, which levy must be sufficient for the redemption of all such outstanding county warrants .... ”

The board of county commissioners derives its power to levy taxes solely from the statute. Under the section quoted it has no power to levy a tax for the purpose of establishing a warrant redemption fund, unless there are unpaid county warrants issued prior to the second Monday of April in the year in which the levy is made. No authority can be found in art. 7, sec. 15, of the constitution for the levy by the county commissioners of a tax for that purpose except through legislative action. The case of Peavy v. McCombs, 26 Ida. 143, 140 Pac. 965, has no application to the question here presented.

The judgment is reversed and the trial court directed to overrule the demurrer to the complaint. Costs awarded- to appellant.

Budge, McCarthy, Dunn and Lee, JJ., concur.