Tobin v. Hartshorn

• Citation: 69 Iowa 648,29 N.W. 764
• Parties: TOBIN AND ANOTHER v. HARTSHORN, TREASURER, AND ANOTHER.
• Decision Date: 22 October 1886
• Court: United States State Supreme Court of Iowa

69 Iowa 648

29 N.W. 764

TOBIN AND ANOTHER

v.HARTSHORN, TREASURER, AND ANOTHER.¹

Supreme Court of Iowa.

October 22, 1886.

Appeal from Palo Alto district court.

This is an agreed case. The relief sought by plaintiffs is a decree declaring that the penalties and interest upon a 5 per cent. railroad tax be canceled and set aside. By the decree of the court below it is held that a part of the penalties cannot be collected. Both parties appeal. The defendants first perfected their appeal, and are therefore designated as appellants.Soper, Crawford & Carr and S. K. Tracy, for appellants.

Harrison & Jenswold, for appellees.

BECK, J.

1. The agreed statement of facts, so far as it need be stated, is in the following language: “That the plaintiffs are residents of the township of Emmetsburg, in Palo Alto county, Iowa, and at the dates hereinafter mentioned were a firm composed of T. H. Tobin and J. F. Neary; and in the year 1881 said firm was the owner of lot No. eleven, (11,) in block No. 26, in Emmetsburg, Iowa, and of the stock of goods in the store-building thereon, which were subject to taxation for the year 1881 at the assessed value of $2,800; that E. J. Hartshorn is the treasurer of Palo Alto county, Iowa; that the Cedar Rapids, Iowa Falls & North western Railroad Company is a corporation organized under the laws of the state of Iowa; that in the year 1881 a five per cent. tax was voted and levied upon all the taxable property in said township of Emmetsburg, Palo Alto county, Iowa, to aid in the construction of said Cedar Rapids, Iowa Falls & Northwestern Railway, which became payable on the second day of January, 1882; that plaintiffs, with others, enjoined the collection thereof by temporary injunction; that in the case of Chicago, M. & St. P. Ry. Co. v. Shea, determined by the supreme court of Iowa on the fifteenth day of December, 1885, and published in 25 N. W. Rep. 901, to which reference is here made, it was determined that said five per cent. tax was valid and collectible; that, by stipulation of the parties, the plaintiff's said suit was made to abide the decision of said cause in said court; that said five per cent. tax upon said property, amounting to $140, was placed upon the tax-list of Palo Alto county, Iowa, for the year 1881, and the same placed in the hands of said treasurer of said county for collection; that no part of said five per cent. tax, nor any penalties nor interest thereon, has been paid and received by the treasurer of said Palo Alto county, Iowa; but that on the twenty-fourth day of February, 1886, the said Tobin & Neary duly tendered and offered to pay to said treasurer of Palo Alto county, Iowa, the said five per cent. tax, to-wit, the said sum of $140, and also interest upon said sum of $140 at the rate of 6 per cent. per annum, from and including the first day of February, 1882, to and including said twenty-fourth day of February, 1886, which the said county treasurer then and there refused to accept and receive, the said county treasurer claiming and demanding, upon and in addition to the said five per cent. taxes, the full amount of the penalties named in section 866 of the Code of Iowa, and refusing to accept or receive anything less than the full amount of the said five per cent. taxes, together with the further sum of 135 per cent. penalties thereon, and added thereto, which said penalties, over and above the sum of six per cent. per annum upon said five per cent. taxes from and including the first day of February, 1882, to and including the twenty-fourth of February, 1886, the said Tobin & Neary then and there refused to pay; and said treasurer is proceeding to collect said five per cent. taxes, together with penalties thereon, as provided by section 866 of the Code of Iowa.”

The court below determined, and so decreed, that there is due and collectible upon the tax, the penalty as provided by Code, § 866, from the date the tax became delinquent, up to the first day of May, 1884, in whole amounting to 69 per centum of the original tax, and interest upon the tax and penalty at the rate of six per centum per annum, from May 12, 1884, to the date of the judgment. All other penalties and interest were canceled and set aside.

2. The tax in controversy was voted and levied under chapter 123, Laws 1876. This statute was repealed by chapter 159, Laws 1884, § 1. There is no provision in the last statute preserving rights accrued under the statute repealed. Counsel for plaintiff insist that by the repeal of the statute all authority for the collection of the tax, or any part of it, is taken away. But Code, § 45, par. 1, declares that “the repeal of a statute does not revive a statute previously repealed, nor affect any right which has accrued, any...