Heath v. Albrook

• Decision Date: 13 February 1904
• Citation: 98 N.W. 619,123 Iowa 559
• Parties: R. J. HEATH, et al, Appellees, v. CHARLES E. ALBROOK, et al, Appellants
• Court: Iowa Supreme Court

98 N.W. 619

123 Iowa 559

R. J. HEATH, et al, Appellees, v. CHARLES E. ALBROOK, et al, Appellants

Supreme Court of Iowa, Des Moines

February 13, 1904

Appeal from Hardin District Court.--HON. W. S. KENYON, Judge.

THE plaintiffs are residents and taxpayers of Hardin county, this state, and bring this action in equity for an injunction to restrain the payment of moneys, for an accounting, and judgment in favor of Hardin county, against defendant Albrook and certain other of the defendants, on account of moneys alleged to have been wrongfully received by them out of the county treasury. The material facts in the case are not in serious dispute, and we state them as briefly as may be: On May 7, 1900, the firm of Fleener, Carnahan & Bilderback submitted to the board of supervisors of Hardin county, then in session, a proposition in writing as follows: "We propose to assist the proper officials of your county in the discovery of property not listed and assessed for taxation as required by law as passed by the 28th General Assembly, and for our services therein we will charge your county a sum of money equal to fifteen per cent. of the taxes paid into the county treasury. Our employment to continue for the period of five years from the date hereof." On the same day the board accepted of such proposition, and by resolution employed and authorized said firm to assist the proper officials of the county in the discovery of property not listed and assessed for taxation as required by law. The resolution provides, in terms, that the compensation to be paid said firm shall be fifteen per cent. of the amount collected on omitted property which they have assisted in discovering, and which had not been listed and assessed as required by law. At the June, 1900, meeting of the board, and after a conference upon the subject, in which the members of the board, the county auditor, and one of the members of the Fleener firm participated, the defendant Albrook was sent for, and the matter of his employment as attorney for the county to assist in the collection of taxes on discovered property was discussed. Albrook offered to accept of the employment on condition that he be paid 15 per cent. of all amounts recovered or paid in. Thereupon the board passed a resolution as follows: "Be it resolved that we hereby employ C. E. Albrook as attorney for the county to make collection of taxes that may be discovered by this county and its agents Fleener, Carnahan & Bilderback, and the penalties thereon; and for such services he shall be allowed the sum of fifteen per cent. of the amount recovered, the fifteen per cent. to cover all expenses and costs." At the January 1901, session of the board, a further resolution was passed as follows: "It is hereby ordered by the board that the auditor draw his warrants on the treasurer upon verified accounts being filed with him for the discovery and collection of taxes on omitted property, as per contract heretofore entered into by this board, and it is further ordered that the said sum be deducted from omitted taxes collected under said contract." It appears that, upon reports being made to the county auditor by the Fleener firm of taxable property claimed to have been discovered, notices were sent out by the auditor to the supposed owners of withheld or omitted property, many of whom thereafter appeared at the auditor's office, and conferences were there had, resulting in some instances in finding that there was in fact no omission, and in other instances resulting in an adjustment as to the value of property withheld or omitted, and the years for which the same was withheld or omitted. In cases where no appearance was made, and in cases where an adjustment was arrived at, the auditor entered the property as having been discovered, or according to the adjustment, as the fact might be, upon the taxbooks of the county, and thereupon the assessments were presented to the treasurer of the county. The latter took no part in the work of adjustment. He accepted simply of the assessments as made by the auditor, and thereafter received such moneys as were voluntarily paid in under such assessments. No effort was made by him to make collections otherwise. It is not pretended that Albrook was present or assisted in each of the adjustments made.

It appears without controversy that, subsequent to his alleged employment, Albrook made an arrangement with the defendant Fleener under which members of his firm, and the employes thereof, were to attend in a general way to the making of adjustments, and such was the course generally pursued. By the terms of the arrangement between Albrook and Fleener, the latter was to receive two-thirds of the amount allowed to Albrook by the county by way of compensation for his services. The services actually rendered by Albrook consisted in the giving opinions and advice to the county auditor, and in giving assistance in making adjustments with some of the taxpayers who appeared in response to the notice sent out by the auditor. It appears that, between the date of the employment of the Fleener firm and the date of the commencement of this action, there had been voluntarily paid into the county treasury taxes on omitted or withheld property in the sum of $ 43,912. On January 17, 1900 defendant Albrook presented to and filed with the county auditor a verified bill in the sum of $ 1,837.92 for services rendered; consisting, as stated, of writing opinions advising the county officials in respect of the assessment and collection of taxes on withheld or omitted property, and in assisting the county officers in collecting taxes on omitted property, as per contract with the board of supervisors. On March 1, 1901, a similar bill was presented for the sum of $ 1, 184.48; on April 3, 1901, a similar bill for $ 1, 692.26; on June 3, 1901, a similar bill for $ 1, 051.76; and on July 8, 1901, a similar bill for $ 820.35. Upon filing of each of these bills, a warrant was issued by the county auditor in favor of Albrook, which, upon presentation to the county treasurer, was paid from the county funds. The aggregate of the bills, it will be observed, was $ 6,586.37. It is conceded that no one of these bills or claims was presented to or acted upon by the board of supervisors before being paid; and it is further conceded that, of the amount so paid, Albrook turned over to the defendant Fleener two-thirds thereof, or the sum of $ 4,344.24. It is also conceded that bills were presented by the Fleener firm, under its contract, in the aggregate sum of $ 6,586.37, and that warrants were drawn therefor, which were paid on presentation by the county treasurer. The bills of the Fleener firm and of Albrook were paid out of the taxes collected from omitted property before distribution thereof was made as required by law.

It is made to appear that since that commencement of this action a large amount, in the aggregate, has been voluntarily paid in as taxes on omitted property, in addition to the amount theretofore paid in, as above stated. Upon final hearing there was a decree finding that the several amounts paid to and received by the defendant Albrook were without warrant or authority of law; that the defendants Welch, county auditor, Carter, county treasurer, the members of the board of supervisors, and the defendant Albrook, should be, and they were, restrained from paying out or receiving from the county treasury any further sums under the alleged contract with said Albrook; and it was further ordered and adjudged that Hardin county have and recover from defendant Albrook the sum of $ 6.758.04, with interest; further, that Hardin county have and recover of the defendant Mart. Fleener the sum of $ 4,505.36--that being the amount, with interest, received by him from Albrook, as hereinbefore stated. The decree provides that payments made by either Albrook or Fleener shall apply in satisfaction of the judgment as rendered against the other. The defendants Albrook and Fleener appeal.

Affirmed.

C. M. Nagle and Albrook & Lundy for appellants.

Boies & Boies, H. L. Huff, and F. H. Noble for appellees.

BISHOP J. WEAVER, J., taking no part.

OPINION

BISHOP, J.

The question of the validity of the contract entered into between the board of supervisors, acting for Hardin county, and the defendant Albrook, is first presented for our consideration. At the outset, and making application of a very familiar principle of law, we may presume that it was intended on the part of all parties concerned to make a contract such as was authorized by law. It will be noted that, by the terms of the resolution adopted by the board, the employment of Albrook was "as attorney for the county to make collection of taxes that may be discovered by this county and its agents," etc. Judging of the contract by its terms, no difficulty stands in the way of the conclusion that it was one altogether proper to be made. Code, Section 1374, providing for the demand for and collection of taxes on property withheld, overlooked, etc., expressly authorizes the bringing of actions by the county treasurer to recover such taxes, with interest, and penalties in case the property has been fraudulently withheld from taxation; and the section contains a provision that such...