Plymouth Cnty. v. Moore

• Decision Date: 17 October 1901
• Citation: Plymouth Cnty. v. Moore, 114 Iowa 700, 87 N.W. 662 (Iowa 1901)
• Parties: PLYMOUTH COUNTY v. MOORE.
• Court: Iowa Supreme Court

114 Iowa 700

87 N.W. 662

PLYMOUTH COUNTY

v.MOORE.

Supreme Court of Iowa.

Oct. 17, 1901.

Appeal from district court, Plymouth county; F. R. Gaynor, Judge.

This is a personal action against the defendant to recover the tax levied upon a stock of merchandise at the time of the assessment and levy owned by him, but which he afterwards sold.There was a judgment for the plaintiff, and the defendant appeals.Reversed.I. S. Struble, for appellant.

George A. Jeffers, for appellee.

SHERWIN, J.

The tax sought to be recovered in this action was levied on the 9th day of September, 1897, and, as we understand from the record and the arguments, before the stock was sold by the defendant.It is stipulated that the stock since its sale has been kept in Plymouth county.It is contended by the appellant that he is not personally liable for the tax levied upon this stock of merchandise because the law provides for its distress and sale for the tax levied upon it.The weight of judicial opinion seems to be that a tax is not a debt, within the commonly accepted definition of that word, and that a common-law action for its recovery as such will not lie when the statute has undertaken to provide the mode and means of its collection without expressly authorizing such an action.Cooley, Tax'n (2d Ed.) 16, and cases there cited;25 Am. & Eng. Enc.Law, 131, 312, and cases.See, also, case cited on this point in Crawford Co. v. Laub, 110 Iowa, 355, 81 N. W. 590;Richards v. Commissioners(Neb.)42 Am. St. Rep. 650, and note, 655(s. c. 58 N. W. 594);Danforth v. McCook Co.(S. D.)76 N. W. 940, 74 Am. St. Rep. 808;City of Detroit v. Jepp(Mich.)18 N. W. 217.This action is to recover an ordinary tax, and the question whether it will lie, in view of the provisions of our statute for the distress and sale of personal property for taxes, is an open one in this state.Sections 1406and1407 of the Code provide the most ample means for the collection of taxes.The first of the two authorizes the distress and sale of all personal property not exempt from taxation, and says that the tax list alone shall be sufficient warrant therefor.The latter authorizes the appointment of collectors to assist the county treasurer, and provides that, in case of their failure to collect the tax, the sheriff of the county shall be placed in charge thereof, and that he may sel as provided in the preceding section.In addition to the two sections above referred to, section 1409 of the Code provides for the certification of an abstract of the delinquent taxes to any other county where the delinquent may reside or have property, and section 1410 gives such abstract, when filed, the effect of a levy of taxes in that county, and says “that the collection of the same shall be proceeded with in the same manner as the collection of other taxes.”The sections of the statute cited give the treasurer almost unlimited power over the property of the delinquent taxpayer, and without any judicial process to hamper or circumscribe his action....