Lyman v. Faris

• Decision Date: 23 April 1880
• Citation: 5 N.W. 621,53 Iowa 498
• Parties: LYMAN AND OTHERS v. FARIS AND ANOTHER.
• Court: Iowa Supreme Court

53 Iowa 498

5 N.W. 621

LYMAN AND OTHERS

v.FARIS AND ANOTHER.

Supreme Court of Iowa.

Filed April 23, 1880.

Appeal from an order of Hon. L. C. Blanchard, judge of the Marion circuit court.

The plaintiffs presented a petition to the judge of the court below, in which it was alleged that they were tax payers in Liberty township, Marion county, and that a certain tax of 5 per cent. upon the taxable property of said township, levied in aid of the construction of the Albia, Knoxville & Des Moines Railroad, was illegal and void, and praying that the defendant Faris, who is the treasurer of the county, be enjoined from collecting the same. An order was made requiring notice of the application for injunction to be given to the defendants. The notice was given, and the defendants filed an answer, and affidavits were presented by the respective parties. The cause was submitted upon the pleadings and affidavits, and an order was made overruling the motion for an injunction. From this order the plaintiffs appeal.Perry & Townsend, for appellants.

T. J. Anderson and Barcroft, Given & McCaughan, for appellee.

ROTHROCK, J.

The question as to the validity of the tax in controversy has already been before this court, in the cases of Merrill v. Welcher et al. and Merrill v. Faris, 50 Iowa, 61. One of those actions was brought against the board of supervisors to obtain a writ of certiorari to test the authority and power of the board to pass a certain resolution declaring said tax abated, and directing the county treasurer not to collect it. The other action was brought against the treasurer to obtain a writ of mandamus to compel the collection of the tax. It was finally determined in those actions that the tax was valid, and that there was no authority in the board of supervisors to abate it, and the treasurer was ordered to proceed to its collection.

After the final determination of those actions this action was commenced by certain of the tax payers of Liberty township, in which they seek to enjoin the treasurer of the county and Merrill, the assignee of the railroad company, from proceeding to the collection. In addition to what was alleged against the validity of the tax in the other cases, it is now averred that the levy is void because of certain other matters which are fully set out in the record, but which, we think, need not be particularized here, because, in our opinion, the adjudication in the other cases, that the tax was valid, is binding upon the plaintiffs. There is no averment that the adjudication in those cases was collusive or fraudulent. Indeed, the record conclusively shows that counsel representing the board of supervisors and the...