Jewett Realty Co. v. Board of Sup'rs of Polk County

• Decision Date: 02 August 1948
• Docket Number: 47265.
• Citation: 33 N.W.2d 377,239 Iowa 988
• Parties: JEWETT REALTY CO. v. BOARD OF SUP'RS OF POLK COUNTY et al.
• Court: Iowa Supreme Court

33 N.W.2d 377

239 Iowa 988

JEWETT REALTY CO. v. BOARD OF SUP'RS OF POLK COUNTY et al.

No. 47265.

Supreme Court of Iowa

August 2, 1948

Frank B. Hallagan and Herrick, Sloan & Langdon, all of Des Moines, for appellants.

C S. Missildine and H. Pierce Witmer, both of Des Moines, for appellee.

GARFIELD Justice.

The question presented is whether certain taxes were 'erroneously or illegally exacted or paid' so as to entitle plaintiff to a refund thereof under section 445.60, Code 1946.

In July 1937, the city council of Des Moines, acting as the local board of review, ordered certain blanket increases and decreases of valuations of property, by districts in the city, for purposes of taxation. Plaintiff's properties here involved were in districts where the board purported to decrease the valuations. In September, 1937, the state board of assessment and review, now the state tax commission, found the action of the local board was arbitrary and discriminatory and ordered it to eliminate such blanket changes in valuations. The local board refused to comply with the order of the state board.

An action of mandamus was then brought against the local board to compel compliance with the order of the state board. The trial court denied relief but we reversed the decision. State ex rel Iowa State Board of Assessment and Review v. Local Board of Review, 225 Iowa 855, 283 N.W. 87. On July 6, 1939, the lower court entered a decree pursuant to our opinion directing the local board to comply with the order of the state board. On or about August 1, 1939, after notice to all taxpayers in the city, the local board finally complied with such order by eliminating the blanket changes previously made by it in July, 1937. Notice of this action was given taxpayers, who were given until October 17, 1939, to file protests. Plaintiff filed no protest.

In March, 1940, the county auditor made the corrections on the tax books in his office and in the office of the county treasurer, 'conforming the books to the order of the state board' and the belated action of the local board pursuant thereto. When the tax books were so corrected they showed additional taxes for 1937 and 1938 against plaintiff's property of $234.20.

In the meantime, during the pendency of the litigation between the state board and the local board or shortly thereafter, plaintiff paid the amounts then showed by the tax books assessed against his property for 1937 and 1938. This was done in instalments in May and October, 1938, and in April and November, 1939. The totals so paid were the taxes computed on the valuations after the blanket reductions were made by the local board in July, 1937, or $234.20 less than the taxes would have been if such reductions had not been made.

On July 30, 1940, plaintiff paid the $234.20 placed on the tax books the preceding March. This is the payment for which the refund was sought herein and decreed by the trial court, who has certified 'the cause is one in which appeal should be allowed.' See rule 333, Rules of Civil Procedure.

Plaintiff's main reliance, on which the decision below seems largely based, is Des Moines Elevator Co. v. Greenwalt, 231 Iowa 1062, 3 N.W.2d 150, where we enjoined a tax sale of property for nonpayment of the increase in tax due to the change in valuations pursuant to the order of the state board made in September, 1937. The case holds that one who had not paid such tax increase could not be compelled to do so.

First National Bank of Remsen v. Hayes, 186 Iowa 892, 896, 171 N.W. 715, also relied upon by plaintiff and quoted from in the Des Moines Elevator case, was an appeal from an assessment of shares of stock in a national bank. There the county auditor, pursuant to what is now Code sections 443.6 to 443.10, had corrected a mistake of the assessor by increasing the tax, not only for the then current year but also for four preceding years after the taxes therefor had been paid. We held this statute conferred no power on the auditor to make such retroactive corrections. The increased amounts for the preceding years had not been paid and, as in the Des Moines Elevator case, the right to a refund was not considered.

Plaintiff argues that the collection of the tax increase would not have been enjoined in the Des Moines Elevator case unless such increase were illegal within the meaning of section 445.60. It is true that injunction will not ordinarily issue against the collection of a tax unless the tax is void. Mere irregularity in the levy of a tax does not, as a rule, justify injunctive relief. Bradley v. Appanoose County, 199 Iowa 317, 319, 200 N.W. 216; First National Bank of Guthrie Center v. Anderson, 196 Iowa 587, 604, 192 N.W. 6; Collins v. City of Keokuk, 118 Iowa 30, 33-35, 91 N.W. 791. If we were to confine our consideration of the authorities to the Des Moines Elevator case, we might well conclude the tax for which this refund is sought was illegally exacted, although the case does not directly so hold and there is nothing in the opinion directly to that effect.

Three actions of this kind for refund of 1937 taxes in Polk County have come before us. Insurance Exchange Bldg. v. Board, 231 Iowa 133, 300 N.W. 717; Home Owners' Loan Corporation of Washington, D. C., v. Polk County, 231 Iowa 661, 1 N.W.2d 742; Butler v. Cotton, 233 Iowa 1311, 11 N.W.2d 686. The tax involved in each of those cases was on property in districts where the local board orginally increased the valuations. These increases were ultimately eliminated, pursuant to the order of the state board and our decision reported in State ex rel. Iowa State Board of Assessment and Review v. Local Board of Review, 225 Iowa 855, 283 N.W. 87. In the meantime, during the pendency of the litigation between the two boards, in the cited cases the owners had paid the tax on the increased, excessive valuation. Refund was sought of the excess tax. In each case recovery was denied on the ground the increased valuations (ultimately reduced) and the taxes computed thereon were merely excessive, not illegal, for which the taxpayer's exclusive remedy, according to numerous of our decisions, was by protest to the local board of review and appeal to the district court.

It is plain the taxpayer in each of the three cases last cited had a much stronger claim in equity and good conscience than plaintiff has here. There each property owner had paid a tax on a valuation eventually found to be excessive. Yet a refund of the excess tax was denied. Here plaintiff originally paid taxes on a reduced valuation arbitrarily made the local board. This reduction was objected to by the state board which was upheld by this court and the valuations were then fixed in the amounts that should have been arrived at in the first instance. The elimination of the reduction in valuation led to the correction of the tax books to show the additional tax which plaintiff paid and now seeks to have refunded.

The total tax paid by plaintiff here was not, as in the Insurance Exchange Home Owners' Loan Corporation and Butler cases, on an excessive valuation but on a correct valuation. Plaintiff paid no more taxes than should have been paid. It would be most...