Collins v. Davis

• Decision Date: 08 December 1881
• Parties: COLLINS v. DAVIS AND OTHERS.
• Court: Iowa Supreme Court

57 Iowa 256

10 N.W. 643

COLLINS

v.DAVIS AND OTHERS.

Supreme Court of Iowa.

Filed December 8, 1881.

Appeal from Lee circuit court.

This is a proceeding for a writ of certiorari. The petition, and amended petition, in substance, allege that plaintiff is a resident tax payer of the city of Keokuk, and brings the suit in his individual capacity and for the public; that the defendants compose the city council of the city of Keokuk; that the assessor of the city of Keokuk for the year 1880 duly assessed the Commercial Bank, a banking corporation under the laws of Iowa, resident within said city, at $35,000, and returned said assessment list to the city council for equalization, and the board of equalization, after hearing all complaints of any person aggrieved, corrected and amended all illegal and erroneous assessments before delivering the duplicate of taxes to the collector, which was about the first day of May, 1880; that there was no change made in the assessment of the said Commercial Bank; that on the fifteenth day of November, 1880, the said Commercial Bank presented a petition to the said city council claiming that the said assessment for 1880, against the said bank, was erroneous and excessive, and asking that an equitable amount due from said bank be ascertained, and authority be given to receive such amount in payment of all claims of the city against the bank, and the city council adopted a resolution that the assessment against the Commercial Bank for 1880 be fixed at $17,000, and that the collector be authorized to receipt for the taxes of 1880 on payment of amount due on assessed value on said amount of $17,000; that the city collector gave a receipt, but the city did not receive from said bank the whole amount due; that the city council, in passing said resolution, exceeded its authority, and acted illegally in reducing, at that date, the assessment of property of the said Commercial Bank; that the clerk of the city council, in giving a receipt to the Commercial Bank in full payment of its taxes due the city for 1880, upon the receipt of $334, acted illegally and exceeded his authority The plaintiff prays a writ of certiorari and an order annulling the proceedings of said city council with regard to the assessment.

The defendants filed a demurrer to the petition. The court overruled the first and second grounds of demurrer, and sustained the third, fourth, fifth, and sixth grounds of the demurrer. The plaintiff elected to stand upon his petition, and refused to further plead, and judgment was rendered against him dismissing the petition. The plaintiff appeals from the sustaining of the demurrer in part. The defendants appeal from the overruling of the first and second grounds of the demurrer. The plaintiff, having first served notice of appeal, is to be denominated the appellant.W. B. Collins, for appellant.

J. C. Davis, for appellees.

DAY, J.

1. The first and second grounds of demurrer, which the court overruled, are as follows: “(1) Because the plaintiff in said application has not such interest in the subject-matter of this suit as authorizes him to bring the same; (2) because the plaintiff has no legal right to sue.”

The plaintiff alleges that he is a resident tax-payer of the city of Keokuk, and that the receipt of the money upon the reduced assessment of $17,000 was illegal and void, and without authority of law, and contrary to the best interests of the city of Keokuk and the tax-payers of said city, and the whole amount of the tax could have been collected from the Commercial Bank. It may be conceded that in some other states a rule has been adopted which would deny the right of the plaintiff to maintain this action. See Doolittle v. Board of Sup'rs of Broome County, 15 N. Y. 155;Roosevelt v. Draper, 23 N. Y. 318;Craft v. Com'rs of Jackson County, 5 Kan. 518. These cases hold that it requires some individual interest, distinct from that which belongs to every inhabitant of a town or county, to give the party complaining a standing in court, where it is alleged delinquency in the administration of public affairs is called in question, and that the fact of owning taxable property is not such a peculiarity as to take the case out of the rule. A different rule, however, has been adopted in this state. In State v. Smith, 7 Iowa, 186, and State v. Bailey, Id. 396, it was held that in a matter of public right any citizen may be relator in an application for a writ of mandamus.

In Collins v. Ripley, 8 Iowa, 129, it was held that a citizen and resident of a county, interested in the public welfare, may petition for and obtain an injunction to restrain a public officer from the commission of an act which would be a public wrong. In Rice v. Smith, 9 Iowa, 570, it was held that persons who are citizens, voters, and tax-payers of a county may be parties plaintiff in an action to restrain, by injunction, the expenditures of county moneys,...