Home Sav. Bank v. Morris

• Decision Date: 11 March 1909
• Citation: 141 Iowa 560,120 N.W. 100
• Parties: HOME SAVINGS BANK v. MORRIS ET AL.
• Court: Iowa Supreme Court

141 Iowa 560

120 N.W. 100

HOME SAVINGS BANK

v.MORRIS ET AL.

Supreme Court of Iowa.

March 11, 1909.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

Action for a writ of mandamus to compel the board of supervisors to order the issuance of a refund warrant for certain interest alleged to be due the plaintiff on money illegally received from it. A demurrer to the petition was sustained, and the plaintiff appeals. Affirmed.Dale & Harvison, for appellant.

Hallaron & Starkey, for appellees.

SHERWIN, J.

On the 1st day of January, 1902, the plaintiff had a certain amount of its capital invested in government bonds; but in assessing the capital of the bank for taxation for said year the amount so invested was not deducted. The bank appeared before the board of review and asked that the capital so invested be exempted from taxation. This was denied, and thereafter the action of the board of review was affirmed by the district court, and still later, in December, 1904, the decision of the district court was affirmed by this court. The case was then taken to the Supreme Court of the United States, where a decision reversing the finding of this court was handed down in April, 1907. See Home Sav. Bank v. Des Moines, 205 U. S. 503, 27 Sup. Ct. 571, 51 L. Ed. 901. While the litigation was pending in the district court, the plaintiff paid the tax levied against it, the first one-half thereof on the 31st of March, 1903, and the second one-half September 30, 1903. After the case had been finally decided, the plaintiff filed with the board of supervisors a claim for the tax so paid with interest thereon from the dates of payment. The amount of tax paid was refunded, but the board refused to pay interest thereon, and thereafter this action was commenced to compel the board of supervisors to order the issuance of a refund warrant for said taxes with interest thereon from the date of payment.

Section 1417 of the Code provides that: “The board of supervisors shall direct the treasurer to refund to the taxpayer any tax or portion thereof found to have been erroneously or illegally exacted or paid, with all interest and costs actually paid thereon.” The plaintiff's action is founded on the statute, and whatever rights it may have must be derived therefrom, and, unless it by clear implication requires the board of supervisors to pay interest on the tax illegally exacted or paid, the plaintiff's action cannot be maintained. The statute provides (Code, § 4341): “The action of mandamus is one brought to obtain an order commanding an inferior tribunal, board, corporation or person to do or not to do an act, the performance or omission of which the law enjoins as a duty resulting from an office, trust or station. Where discretion is left to the inferior tribunal or person, the mandamus can only compel it to act, but cannot control such discretion.” To maintain this action of mandamus therefore the plaintiff must show that section 1417 provides for the payment of interest by the county on all taxes which the section orders refunded. If it does not so provide, the plaintiff has no case, because this action will not lie to control the discretion of the board It seems to us that the statute itself fully answers the appellant's contention. It says in so many words just what shall be done. It says that the treasurer shall be directed to refund the tax illegally paid, together with all interest and costs actually paid on said taxes. The...