Charles Hewitt & Sons Co. v. Keller

• Decision Date: 28 September 1937
• Docket Number: 43896.
• Citation: 275 N.W. 94,223 Iowa 1372
• Parties: CHARLES HEWITT & SONS CO. v. KELLER et al., Board of County Sup'rs.
• Court: Iowa Supreme Court

275 N.W. 94

223 Iowa 1372

CHARLES HEWITT & SONS CO. v. KELLER et al., Board of County Sup'rs.

No. 43896.

Supreme Court of Iowa.

September 28, 1937

Appeal from District Court, Polk County; Russell Jordan, Judge.

This is an action in equity to compel a refund of taxes claimed to have been erroneously collected by the treasurer of Polk county for the year 1935. Plaintiff asked a writ of mandamus to compel the repayment of $267.69 in accordance with the provisions of section 7235 of the Code. This claim is based upon the charge that the county auditor, in fixing the several tax rates for the year 1934, failed to comply with section 7164 of the Code, which requires a deduction from the budget requirements certified to him, of the tax to be derived from moneys and credits, in fixing the rates necessary to raise the required amount. The action is to recover the difference between the amount actually paid and the amount which should have been paid had the county auditor complied with the statute. The defendants for answer alleged that plaintiff's remedy was by appeal to the state board of assessment and review, that plaintiff voluntarily paid the tax and is barred from recovering, and that section 7164 upon which plaintiff relies, is not only so indefinite as to be unworkable but that it is unconstitutional on various grounds. On trial to the court the amount claimed was reduced to $254.53, and from the decree entered for that amount defendants appeal.

Affirmed.

Carl A. Burkman, Charles Hutchinson, Howard M. Hall, Vernon R Seeburger, Ronald L. Ryan, all of Des Moines, for appellants.

George A. Kern, Stanton S. Faville, and John Connolly, Jr., all of Des Moines, for appellee.

SAGER Justice.

There is no substantial dispute as to overpayment of the tax; in fact, the defendants-appellants, who constitute the board of supervisors of Polk county, and who will hereafter be referred to as the board, tacitly, if not expressly, admit that the provisions of section 7164 of the Code were ignored and that as a result plaintiff-appellee was called upon to and did pay at least the amount for which decree was rendered in its favor in excess of the amount due if the deduction provided for in the cited statute had been made.

We pass for the moment the question of whether the cited statute is " vague, indefinite, and impossible in its operation and therefore unworkable," as appellants charge.

The greater part of the arguments of the parties on both sides is devoted to a discussion as to whether this section of the statute is unconstitutional. This raises the question whether and by what authority the board may raise this issue. There is admittedly a conflict in the authorities, with the weight on the side of the proposition that appellants are not in a position to do so. While the question has never been before this court in exactly the same way that it comes up now, we have on other occasions expressed ourselves as holding against the appellants' contention, this, on the principle that ministerial officers may not challenge the competence of the Legislature to enact the very statutes under which these officers act. Scott County v Johnson, 209 Iowa 213, at pages 218, 219, 220, 222 N.W. 378, discusses this proposition. That case is not parallel in its facts, in that the county in that case sought to prevent the defendants from applying the interest on county funds to a state sinking fund to provide for the payment of public funds deposited in a bank which became insolvent. Evans, J., in the course of this opinion, propounded this question (209 Iowa 213, at page 218, 222 N.W. 378, 380):" Does the plaintiff, as a county, have a proprietary right to demand as its own property, all interest to be collected upon county deposits under the foregoing statutes? And is such right superior, on constitutional grounds, to the power of the Legislature to enact otherwise?"

After discussing the section under which the interest in controversy would be derived (section 7404, Code 1924), the court declared that if the county had a vested interest in these funds a like interest would be created in a school corporation; and proceeded (209 Iowa 213, at page 221, 222 N.W. 378, 381):" We have held definitely that a school corporation cannot challenge the constitutionality of a legislative act. Waddell v. Board of Directors, 190 Iowa 400, 175 N.W. 65.We have held also indirectly that a county is under the same disability. McSurely v. McGrew, 140 Iowa 163, 118 N.W. 415, 132 Am.St.Rep. 248.And later we have held directly to such effect. Iowa Life Ins. Co. v. Board of Supervisors, 190 Iowa 777, 180 N.W. 721.These authorities are quite conclusive against the plaintiff's capacity to challenge this legislation."

Further in the opinion, 209 Iowa 213, at page 222, 222 N.W. 378, 382, appears this language (from McSurely v. McGrew, 140 Iowa 163, 118 N.W. 415, 132 Am.St.Rep. 248):" A county, while a body corporate under our law, is a subdivision of the State, created for administrative and other public purposes, owes its creation to the State, and is subject at all times to legislative control and change. No citizen has any vested right in or to its revenues."

The opinion goes on to examine the various cases touching this subject, and we are under no necessity of repeating such discussion.

Since the controversy before us on this appeal arises from the act of the county auditor of Polk county, it may be of interest to note our expression as to that officer's status. Morling, C. J., delivering the opinion in Iowa Nat. Bank v. Stewart, 214 Iowa 1229, at page 1240, 232 N.W. 445, 451, said: " The assessments and the rate to be paid by the several taxpayers as between themselves are complete and are determined when the assessor returns the assessment rolls and assessment book to the county auditor, subject to class modification by the county and state boards of review and to change by the court if appeal has been taken. The remainder of the process of taxation is one of collection and enforcement of the taxes as so assessed. This is ministerial. The auditor's duty is to transcribe the assessments into the tax book and make the necessary computations and extensions and clerical corrections. This duty is merely clerical and ministerial. First National Bank v. Burke, 201 Iowa 994, 196 N.W. 287; First National Bank v. Hayes, 186 Iowa 892, 171 N.W. 715; Ridley v. Doughty, 77 Iowa 226, 42 N.W. 178; [ Id.] 85 Iowa 418, 52 N.W. 350; Milwaukee & St. Paul Railroad Co. v. Kossuth County, 41 Iowa 57, 66; Cooley Taxation, (4th Ed.), sec. 1167; People v. Pittsburgh, 316 Ill. 410, 147 N.E. 492.The auditor's act in changing the classification and assessment of the property of the competing corporations was without power and void. Fort Madison Sec. Co. v. Maxwell, 202 Iowa 1346, 212 N.W. 131."

An interesting, though of course not controlling, decision on the subject as to how far public officials may question the constitutionality of a statute under which they operate is State ex rel. Clinton Falls, etc. v. Steele County Board of Com'rs, 181 Minn. 427, 232 N.W. 737, 71 A.L.R. 1190.We quote briefly therefrom (181 Minn. 427, 232 N.W. at page 737, 71 A.L.R. 1190):" It is the well-established law that a litigant may be heard to question the constitutionality of a statute only when and so far as it is being or is about to be applied to his disadvantage. He must show injury. [Citing cases.]"

The opinion in this case contains this further instructive language (181 Minn. 427, 232 N.W. 737, at page 738, 71 A.L.R. 1190):

" An unconstitutional statute binds no one. There is, however, another equally well established and recognized rule that a statute is presumed by the court to be valid until its unconstitutionality is made to plainly appear.

Upon the theory that the law is a nullity, some courts hold that the official may raise the question of the constitutionality of the law. [Citing cases.] In the Van Horn Case [46 Neb. 62, 64 N.W. 365], it is suggested that the official charged with such ministerial duty may raise the question because his oath of office compels him to support the Constitution. The answer to that course of reasoning is that his oath does not require him to obey the Constitution as he decides, but as judicially determined.

The authorities are in conflict. The better doctrine, supported by the weight of authority, is that an official so charged with the performance of a ministerial duty will not be allowed to...