Isbell v. Board of Sup'rs of Woodbury County
| Decision Date | 28 July 1952 |
| Docket Number | No. 47980,47980 |
| Citation | 243 Iowa 941,54 N.W.2d 508 |
| Parties | ISBELL et al. v. BOARD OF SUPERVISORS OF WOODBURY COUNTY et al. |
| Court | Iowa Supreme Court |
Charles M. Gasser, of Sioux City, for appellants.
Robert B. Pike, of Sioux City, for appellees.
At the general election in November, 1948, electors in Woodbury county by a vote of 3775 to 2056 favored the establishment of a county library district under what is now chapter 358B, Code 1950, I.C.A. The town of Correctionville is included within the established district. The county board of supervisors appointed a board of library trustees pursuant to Code section 358B.4, I.C.A. It is not contended the county library district was not legally established.
On July 6, 1949, the board of library trustees, as directed by 358B.13 transmitted to the board of supervisors an estimate of the amount it deemed necessary for maintenance of the county library for the year 1950. A like estimate for the year 1951 was transmitted to the board of supervisors July 7, 1950. The library board failed to transmit such an estimate to the town council of Correctionville and the council made no millage levy for maintenance of the county library as section 358B.13 contemplates. Such a levy was, however, made by the board of supervisors for 1950 and the county treasurer intends to collect the tax. Included therein was a levy of two mills against property in Correctionville.
April 13, 1950, a free public library was established in Correctionville under Code chapter 378, I.C.A. and commenced operation July 1 of that year. As authorized by Code section 404.5(19), I.C.A., the council levied a tax of 2.462 mills for maintenance of the town library which was certified to the county auditor as provided by section 404.21.
Plaintiff, a resident taxpayer in Correctionville, for himself and others similarly situated, brought this action in equity against the county board of supervisors, auditor and treasurer to annul the tax for 1950 against property in Correctionville for maintenance of the county library. Plaintiff contends the tax is void upon three grounds:
1) The county library board did not transmit to the town council an estimate of the amount it deemed necessary for maintenance of the library as directed by Code section 358B.13, I.C.A.
2) The town council made no millage levy for maintenance of the county library as required by 358B.13.
3) Establishment of the free public library in Correctionville under Code chapter 378, I.C.A., constitutes a withdrawal of the town from the county library district.
Following trial at which the facts stated above were shown by admissions in pleadings, stipulation or evidence, plaintiff's petition was dismissed and he has appealed.
I. We first consider the contention last stated. We find it is without merit. Code chapter 358B, I.C.A., enacted in 1947, as chapter 193, Acts 52d G.A., provides for the establishment of free public libraries in county library districts upon a majority vote of the electors voting on the proposition who reside outside of cities and towns maintaining a free public library as provided by Code section 378.1, I.C.A. Code section 358B.2, I.C.A. goes on to state: 'The result of the election within cities and towns maintaining a free public library under the above-mentioned provision shall be considered separately, and no such city or town shall be included within the county library district unless a majority of its electors, voting on the proposition, favor its inclusion.'
When this county library was established Correctionville had no free public library--it was established later. It is not questioned that Correctionville was included within the county library district at the outset. Nothing has happened that constitutes a withdrawal of the town from that district unless the establishment of the town library has that effect. We find no statute which so provides. If formation of a town library is to constitute a withdrawal of the town from an existing county library district the legislature must so provide. Until it does there is no basis for such holding. Plaintiff's remedy at this point rests with the legislature, not the courts. See Kistner v. Board, 225 Iowa 404, 414, 280 N.W. 587; In re Estate of Hagan, 232 Iowa 525, 529, 5 N.W.2d 856, 859; 50 Am.Jur., Statutes, section 234; 59 C.J., Statutes, section 576.
II. We consider now grounds 1 and 2 of plaintiff's action. Code section 358B.13, I.C.A. provides: * * *'
It appears without dispute there was no compliance in two respects with the part of 358b.13 we have italicized: 1) The county library board did not transmit to the Correctionville town council its estimate of the amount it deemed necessary for maintenance, and 2) the town council made no levy for county library maintenance.
We may assume, as defendants argue, without so deciding, failure to transmit the estimate to the council is a mere irregularity which does not render the tax illegal and void. We observe, however, that 61 C.J., Taxation, section 688, states: 'Where it is required by constitutional or statutory provision that certain authorities * * * make and file, with specified officers, a certificate, budget or estimate of the rate or amount of taxes which they require to be raised, as a condition precedent to the levy thereof, it is essential, before the tax can be lawfully levied, that there shall be a compliance with such requirement in every substantial particular, * * *.'
Be that as it may, the council's failure to levy the tax is a more serious complaint. We are compelled to hold the tax levied by defendant board for 1950 against property in Correctionville is illegal and void and plaintiff is entitled to enjoin its enforcement.
It is plain boards of supervisors may exercise only such power of taxation for county library maintenance as section 358B.13 confers upon them. This statute makes it clear the rural area in this library district and the town of Correctionville are separate taxing units, the tax to be levied by defendant board is only against the rural area and the levy against property in Correctionville is to be made by the council of that town. What was done here is that the governing body (board of supervisors) of one taxing unit (rural area in the district) attempted to levy a tax against another taxing unit (Correctionville) without any action from its governing body (town council).
Property in Correctionville is not subject to taxation under section 358B.13 by defendant board. That body is without statutory power to levy a tax against property in Correctionville for county library maintenance, just as the town council is without power to levy a tax against the rural area in the district.
The 'levy' of a tax is the legislative act which determines that a tax shall be laid. 'It is the first essential to a valid tax * * *.' 51 Am.Jur., Taxation, section 647. 'A levy by the proper legislative authorities is the first step in taxation, and no taxes can be assessed or collected unless and until a legal levy is ordered by such authorities, * * *.' 61 C.J., Taxation, section 673, page 552. 'A tax must be levied * * * by the legislative power to which it is referable; * * *.' Id., section 675. 'A local tax is not valid unless it is duly levied by the proper local authorities, * * *.' Id., section 682.
We have uniformly held a valid levy is a very essential jurisdictional step in the imposition of a tax. We have likened it to a judgment in rem. The levy is of such importance that parol proof thereof is not admissible. See in this connection Bennett v. Finkbine Lumber Co., 199 Iowa 1085, 1088, 1089, 198 N.W. 1; Smithberg v. Archer, 108 Iowa 215, 78 N.W. 847; Hintrager v. Kiene, 62 Iowa 605, 15 N.W. 568, 17 N.W. 910; Ellis v. Peck, 45 Iowa 112, 114, 115; Early v. Whittingham, 43 Iowa 162, 167; Moore v. Cooke, 40 Iowa 290; McCready v. Sexton & Son, 29 Iowa 356, 389.
Scott v. Union County, 63 Iowa 583, 588, 19 N.W. 667, 669, holds a tax levied by a board of supervisors was void and its collection should be enjoined because it was not levied at a regular meeting or special session convened in the manner provided by law. 'They had no power at that time to make the levy, and their action is void.' Here defendant board had no power at any time to levy this tax against the town of Correctionville and its action in so doing is void.
We have repeatedly held that where a tax is illegal and void, as we think this...
To continue reading
Request your trial
-
Todd's Estate, In re
... ... the expense of her care and keep were paid by Polk County, Iowa. After her death her estate was opened in Polk ... ...
-
Price v. Drainage Dist. No. 17, Mississippi County, Ark.
...789 (1920); Cooley, The Law of Taxation, § 1015 (1924). "It is the first essential to a valid tax." Isbell v. Board of Supervisors of Woodbury County, 243 Iowa 941, 54 N.W.2d 508 (1952), citing 72 Am.Jur.2d § 707 (1974). "A local tax is not valid unless it is levied by the proper local auth......
-
Mt. Sinai Christian Fellowship Church of God in Christ, Inc. v. Scott Cnty. Bd. of Supervisors
...by some officer or officers having no authority to levy the same, or (4) in some other similar illegal respect." Isbell v. Bd. of Sup'rs, 54 N.W.2d 508, 511 (Iowa 1952). Mt. Sinai contends the property is not subject to taxation; "[t]he simple, straight-forward mistake of including the wron......