Smith v. Osburn

• Decision Date: 23 April 1880
• Citation: 5 N.W. 681,53 Iowa 474
• Parties: SMITH & FUNCK v. OSBURN AND OTHERS.
• Court: Iowa Supreme Court

53 Iowa 474

5 N.W. 681

SMITH & FUNCK

v.OSBURN AND OTHERS.

Supreme Court of Iowa.

Filed April 23, 1880.

Appeal from Dickinson circuit court.

Action in equity to restrain the defendant, who is treasurer of Dickinson county, from collecting certain taxes assessed and levied against the defendants. It is averred in the petition that the taxes were levied upon a printing press, type, cases, imposing stone, and other tools and implements used by the plaintiffs in their trade or business as printers, and by the use of which they obtained a livelihood. The property in question was assessed at $300, and it is averred that the aggregate value thereof did not exceed $300 for each of the plaintiffs. There was a demurrer to the petition, which was sustained. Plaintiffs appeal.Orson Rice and Wm. H. Bailey, for appellants.

J. W. Corey, for appellees.

ROTHROCK, J.

1. The amount in controversy is less than $100. The demurrer contained a number of grounds therefor, among which it was claimed that the assessment in question was erroneous, and not illegal, and that no application was made to the board of equalization for a correction thereof.

It has uniformly been held by this court that when the assessment was merely irregular or erroneous, equity will not interfere to correct the same, but that application must be made to the board of equalization. Macklot v. Davenport 17 Iowa, 379, and other cases. But where a tax is imposed under an unconstitutional law, or levied without authority of law, upon property exempt from taxation, the same cases hold that the jurisdiction of the board of equalization is not exclusive. It is claimed that the property described in the petition is, under the law, exempt from taxation. If this position be correct, as the petition avers grounds for equitable relief, the action may be maintained. This we deem a sufficient answer to the argument of appellee upon this question, and the effect thereof is to overrule the motion to dismiss the appeal, althoughthe ruling on the demurrer sustained the same generally. That the demurrer was in fact sustained on but one ground, appears from the fact that the court below certified but the one question upon which the opinion of this court is sought.

2. The question certified by the court is this: “Whether the provisions of section 797 of the Code applies to printers, and whether the utensils, implements, etc., used by printers are mechanics' tools within the meaning of said section.” That...