Murphy v. Board of Sup'rs of Johnson County

• Decision Date: 25 October 1927
• Docket Number: 38149
• Parties: A. B. MURPHY et al., Appellants, v. BOARD OF SUPERVISORS et al., Appellees
• Court: Iowa Supreme Court

215 N.W. 744

205 Iowa 256

A. B. MURPHY et al., Appellants, v. BOARD OF SUPERVISORS et al., Appellees

No. 38149

Supreme Court of Iowa, Des Moines

October 25, 1927

REHEARING DENIED FEBRUARY 11, 1928.

Appeal from Johnson District Court.--RALPH OTTO, Judge.

Action in equity, to compel board of supervisors to require refund by county treasurer of taxes unlawfully collected. Defendants filed motion to dismiss petition, which was sustained, and plaintiffs appeal.

Affirmed.

A. J Shaw and W. H. Bailey, for appellants.

Edward L. O'Connor, County Attorney, and Dutcher, Walker & Ries for appellees.

KINDIG, J. EVANS, C. J., and STEVENS, FAVILLE, and WAGNER, JJ., concur.

OPINION

KINDIG, J.

This action was for a writ of mandamus, requesting that the board of supervisors of Johnson County ask the treasurer thereof to repay appellants, the plaintiffs below, certain taxes, in accordance with Section 1417, Code of 1897, which reads as follows:

"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 * * *."

Historically, the facts are: Previously, appellants brought a proceeding in law against said county and Charles L. Berry, its treasurer, to recover a personal judgment for said wrongful collection. Such litigation terminated unsuccessfully, for the reason that the said municipal subdivision and official were not personally liable therefor, and the remedy proper in the premises must be under said statutory enactment above quoted. Murphy v. Berry, 200 Iowa 974, 205 N.W. 777. Afterward, a petition was filed in this cause, stating that Iowa City has a population of more than five thousand, and in the designation of cities is catalogued as "second class," within the purview of Sections 758, Supplemental Supplement of 1915, and 1303, Supplemental Supplement, 1915, as amended by the Acts of the Thirty-eighth General Assembly, Chapter 355, containing the following provisions, respectively:

"Sec. 758. Cities of the first class and also cities of the second class having a population of five thousand or over, and which are traversed by a stream two hundred feet or more in width from shore line to shore line shall have full control of the bridge fund levied and collected as provided by law, and shall have the right to use the same for the construction of bridges, culverts, and approaches thereto, repairing the same, and paying bridge bonds and interest thereon issued by such city, and shall be liable for defective construction thereof, and failure to maintain the same in safe condition as counties now are with reference to county bridges; and no county shall be liable for any such bridge or injuries caused thereby."

"Sec. 1303. The board of supervisors of each county shall. annually, at its September session, levy the following taxes upon the assessed value of the taxable property in the county: * * * 4. For making and repairing bridges, not more than five mills on a dollar; but such tax shall not be levied upon any property assessable within the limits of any city of the first class, and none of such bridge tax shall be used in the construction or repair of bridges within the limits of such city; provided that in counties having a bonded indebtedness of ten thousand dollars or over, the county board of supervisors may levy not to exceed seven mills."

Flowing through said city was a river wide enough to come within the limitations above required. In due time, said board of supervisors, upon proper certificates of the council of said city, levied and caused to be collected for the years 1918 and 1919, respectively, a five- and a four and one-half-mill bridge tax against all property within the boundaries thereof. Upon collection of said "taxes" by the county treasurer, they were turned over to the treasurer of said city, and used in constructing and maintaining its bridges. Notwithstanding this, however, the county, in addition thereto, levied and collected for said years, respectively, a five- and a seven-mill tax on all property within said city, the proceeds of which were permanently retained by said county, and no part of it delivered to the city. Appellants and their assignors, being residents and taxpayers within the city, commenced this litigation to recover the income from the erroneous assessment above mentioned, in the manner and way suggested in the case of Murphy v. Berry, supra.

Many grounds of attack are set forth in appellees' motion to dismiss, the principal of which, however, is that the instant cause of action is barred by the statute of limitations, because not brought within five years. The correctness of this defense is conceded to be true, were it not for Section 11017 of the Code of 1924. Material language thereof is:

"If, after the commencement of an action, the plaintiff, for any cause except negligence in its prosecution, fails therein, and a new one is brought within six months thereafter, the second shall, for the purposes herein contemplated, be held a continuation of the first."

"New one," as used in the paragraph above, relates to a second "action" based upon the same cause as the original. Whalen v. Gordon, 37 C.C.A. 70 (95 F 305); McDonald v. Jackson, 55 Iowa 37, 7 N.W. 408. Moreover, the parties must be identical. Marks & Shields v. Chicago, R. I. & P. R. Co., 184 Iowa 1352, 169 N.W. 764. On the one hand, appellants, to obtain a reversal, contend that the former "action" was against the county, and founded upon the recovery of taxes illegally collected. Further, they insist that the present...