Woodbine Sav. Bank v. Tyler
| Decision Date | 14 May 1917 |
| Docket Number | 30458 |
| Citation | 162 N.W. 590,181 Iowa 1389 |
| Parties | WOODBINE SAVINGS BANK, Appellee, v. E. G. TYLER et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED DECEMBER 14, 1917.
Appeal from Harrison District Court.--J. B. ROCKAFELLOW, Judge.
THE action is one by plaintiff against defendant to have certain alleged taxes declared null and void, and to have a tax certificate of purchase, a tax sale, and the sale of lands based upon said taxes, canceled, on the ground that there was no valid listing, assessment or levy of said taxes, because the assessor who attempted to list the property liable for taxes failed to attach his oath to the assessment rolls, as required by Code Section 1365.
Affirmed.
Roadifer & Roadifer and L. W. Fallon, for appellants.
H. L Robertson, for appellee.
I.
We agree with appellant that the foreclosure suit through which appellee has title was in such condition as to parties joined and issues made as that the decree of foreclosure does not preclude the appellants from contending that the tax in controversy was a valid one, and we proceed to determine that question, unaffected by said foreclosure decree.
In Warfield-Pratt-Howell Co. v. Averill Groc. Co., 119 Iowa 75, 93 N.W. 80, there was an attempt to enter upon the assessment book a tax against a stock of goods. There, as here, the assessor did not attach the oath which Section 1365 of the Code of 1897 requires to be attached to the assessment roll. Averill owned this stock of goods from January 1, 1899, to June 1st of that year, when he delivered possession to the Letts-Fletcher Company, in pursuance of an agreement entered into May 2, 1899. The latter sold and delivered the stock remaining, about two thirds, to plaintiff Warfield on June 20, 1899. In October and December of that year, the proper officers of the county and city levied the annual taxes, and plaintiff, on being advised that, unless these taxes were paid before June 25, 1900, collection would be enforced by distress and sale, paid the entire amount. He sought at law to recover back from the defendant Averill. We held that the requirement to attach the oath is mandatory, and that without same the assessment is invalid, as distinguished from being merely irregular.
1-a
The appellants claim the Warfield case makes a distinction between actions at law and suits in equity. Without passing at this time upon whether such a distinction exists, we are of opinion that the case does not make it. It says that there is reliance by appellee upon authorities to the effect that equity will not lend its aid to defeat the collection of a tax unless it appears to be unequal and unjust, and an offer is made to pay such sum as in justice and equity the complainant ought to pay; and the citations for which this claim is made are set out. It continues that, in the cited cases, the distinction between an action in equity to restrain or prevent the enforcement of an alleged tax lien and a suit at law directly involving the validity of the assessment is clearly pointed out; that the fact that the two lines of decisions run throughout the reports of several states, both of which are unquestioned, indicates there is no conflict; that, in the one, equity refuses to interfere unless, in good conscience, the suitor shows himself entitled to relief, while at law, relief is awarded because of the absence of a valid assessment upon which to base a recovery. Since the Warfield action was at law, the court had no occasion to determine whether a different rule prevails in equity, and up to this point, makes no attempt to determine it, and in effect, merely points out that such a distinction is claimed; that cases cited by appellee make it, and make it clearly; and points out upon what basis these cases make the distinction. The most that is added is a dictum that the distinction made by these cases is not in conflict with the rule prevailing on the law side. To make clear that there is no attempt to say what the rule should be in equity, there is added that this distinction was declared unsound by the Supreme Court of North Dakota in Eaton v. Bennett, 87 N.W. 188, overruling an earlier case upon which appellee relied, on the ground that nothing can be said to be justly due, in the absence of a valid assessment. The question whether the distinction which appellant seeks to make obtains, is not foreclosed by the Warfield case.
1-b
In Conway v. Younkin, 28 Iowa 295, there was no failure to verify the roll, but there was an omission of the assessor to insert the name of a person whom he intended to assess jointly with another as the owner of the property assessed, and it was held that this was an error which might properly be corrected by the clerk of the board of supervisors, under Section 747 of the Revision. It is upon this record we said that equity will not interfere to prevent the collection of a tax authorized by law, and to which the property is justly liable, on account of what this particular omission is, to wit, a mere irregularity. We have no quarrel with this, but it does not settle the case before us. It does not settle that equity will attach conditions to resisting a void assessment. In Litchfield v. County, 40 Iowa 66, at 68, a suit in equity, nothing but irregularities were involved. They consisted: (1) In the classification of the lands by the supervisors as to their values, (2) the assessment of the lands to unknown owners in 80-acre tracts; (3) the want of a warrant to the tax list; (4) the failure of the treasurer to offer the lands for sale at a time required by law. It is as to this we held that mere irregularities in the assessment or levy of taxes will not justify the interference of equity to stay their collection. What we have said as to the Conway case applies to this.
Rood v. Board, 39 Iowa 444, involved what was held to be an illegal tax. We said:
For this, many of our own decisions are cited. This statement is approved in Montis v. McQuiston, 107 Iowa 651, at 652, 78 N.W. 704. Hubbard v. Board, 23 Iowa 130, was an action in equity to restrain the collection of a tax which is held to be void. The equity jurisdiction is upheld. (151). Reed v. City of Cedar Rapids, 138 Iowa 366, 116 N.W. 140, holds by strong implication that the requirement to verify the assessment roll is not abrogated in a suit in equity to enjoin the collection of taxes assessed. Chamberlain v. City of Burlington, 19 Iowa 395, cited in the Rood case, sustains enjoining the collection of an illegal tax. So of Macklot v. City of Davenport, 17 Iowa 379. And so of Litchfield v. County, 18 Iowa 70. And of Williams v. Peinny, 25 Iowa 436. The citations of the Rood case include Zorger v. Township, 36 Iowa 175, and Olmstead v. Board, 24 Iowa 33, both of which sustain the holding of the Rood case by at least very strong implication. Approving the Rood case, we say, in Security Sav. Bank v. Carroll, 131 Iowa 605, at 608, 609, 109 N.W. 212, that, if a tax be illegal and void, equity may be invoked even if there be a tribunal provided for reviewing the same. To like effect, and approving the Rood case, is Hubbel v. Bennett, 130 Iowa 66, at 68, 106 N.W. 375. And so of Chicago, M. & St. P. R. Co. v. Phillips, 111 Iowa 377, at 380, 384, 82 N.W. 787. State Board v. Holliday, (Ind.) 49 N.E. 14, sustains a proceeding to enjoin the state board from listing and valuing the life insurance policies for taxation that were held by appellees. Senour v. Ruth, (Ind.) 39 N.E. 946, 947, permits an invalid taxation to be attacked collaterally. The proposition that courts may relieve from assessments levied without jurisdiction is supported by the following authorities: County of Santa Clara v. Southern Pac. R. Co., 6 S.Ct. 1132, 30 L.Ed. 118; Central Pac. R. Co. v. People of California, 16 S.Ct. 766, 40 L.Ed. 903; St. Marys Gas Co. v. Elk County, (Pa.) 43 A. 321; Keokuk & H. Bridge Co. v. People, (Ill.) 43 N.E. 691; Maxwell v. People, (Ill.) 59 N.E. 1101; Poe v. Howell, (N.M.) 67 P. 62; State v. Ernst, (Nev.) 65 P. 7.
Holding that equity may intervene where the tax is void, as distinguished from being merely irregular, is supported in analogy by cases like Worrall v. Chase, 144 Iowa 665, 123 N.W. 338, and Rea v. Rea, 123 Iowa 241, 98 N.W. 787, to the effect that one who attacks a void judgment based upon an alleged debt does not have the...
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