Harwood v. Quinby

Seevees, Ch. J. i. taxation: roadf°f laÜ I. The tax was voted in October, 1868, and the road was completed, as alleged in the answer, as early as August, 1869, and this action was commenced in November, 1874; therefore not only three, but five, years had elapsed between the completion of the road and the commencement of this action. It was held, in Prescott v. Gonser, 34 Iowa, 175, that the' statute of limitations of three 3rears barred an action brought against a county auditor for the omission of an official duty. Conceding the principle determined in that case to apply in this (which question we do not determine), still we are of the opinion that the present action is not barred by either the third or fourth sub-divisions of section 2529 of the Code. Under the act of 1868, in accordance with the provisions of which the tax' in question was voted, the township trustees had no duty to perform, except to give notice of the election, canvass the same, determine the per centum of tax, and cause the township clerk to prepare and certify to the clerk of the board of supervisors the proper lists. When this was done, the duty of the trustees was at an end. It was the duty of the county treasurer to collect the tax and pay the same upon the order of the president or managing director of the corporation; such order, however, before the treasurer could be compelled to collect and pay over, must have been accompanied by the estimates of the engineer in charge of the work, showing that an equal amount had been expended in the construction of [392] the work in the township and county. See Harwood v. Case, 37 Iowa, 693, in relation to this same tax. Under the act of 1868, the plaintiff had a right of action against the county treasurer as early, it may be said, as August, 1869; and, conceding such right of action to be fully barred at the time this action was commenced, this by no means determines the question as to these defendants. Chapters two and fifty of the general laws of the Fourteenth General Assembly took effect in March, 1872. These acts cast on the defendants the duty which the petition seeks to compel them to perform, and in aid of which a mandamus is asked. 2.-: —: No right of action, for the cause of action stated in the petition, accrued against these defendants until said acts took effect, and this action was commenced within three years thereafter. The defendants cannot avail themselves of the period of time preceding such time as they had an official duty to perform as a shield or protection against the omission to perform such official duty. However good the bar may be as to the county treasurer, the defendants cannot have the benefit thereof. In three years from the taking effect of said acts, and not until then, will the bar of the statute be complete or available as to the defendants. Besides this, the statutory bar as to the treasurer was n.ot complete until August, 1872; therefore, there was an existing cause of action against the treasurer .when the acts of 1872 took effect. Such being the case, it was competent for the General Assembly to enlarge the statutory bar as to actions not barred at the time said acts took effect. Higgins v. Mendenhall, 42 Iowa, 675. If, therefore, the principle prevails that it is the right of action alone, without reference to the person upon whom the statute operates, it will still be seen the statutory bar was not complete at the commencement of this action. ____ evidence. II. It was held, in Muscatine W. R. R. v. Horton, 38 Iowa, 33, that no contract, stipulation or reservation could be set up to defeat the tax, unless it was in writing; &11<^ ag ^ jg noj; averred in the answer that any of [393] the several matters set up as defenses were in writing, the answer was obnoxious to a demurrer. 4. — :-: trustees. It is; however, urged that defendants were acting judicially, and had a discretion to exercise, and having acted or exercised such discretion, their action is final. As there was no written evidence ot any contract or reservation, their judicial discretion was somewhat limited. They, could determine whether the road was completed; whether an order from the president of the corporation, accompanied by the necessary estimates, had been presented to the treasurer, and nothing more. These matters are admitted in the answer, but it is said the order, and perhaps the certificate of the engineer, had been fraudulently obtained. Of such fraud the defendants cannot complain; possibly the corporation might, but that question is not before us. Suppose it to be true, as claimed, that fraudulent means were used to carry the election for the tax, such fact would not excuse the defendants from performing the official duty cast on them by the statute. What must be intended by judicial discretion, as applied to the facts of this case, is that the. defendants had the right to determine the road had not been completed, and as to the order and estimates. The certificate of the engineer was conclusive that the amount stated by him had been expended. The question the defendants had to determine, as to the order and certificate, was, whether they were before them, and not as to how they were obtained. A statute in New York empowered the board of supervisors to determine claims for illegal assessments. It was held, when the existence of the claim was undisputed, the board could not, under the pretense of' exercising judicial discretion, arbitrarily reject it. The People v. Supervisors of Otsego County, 51 N. Y., 401. So, in the case at bar, the defendants seek to justify or base their action on things that they had no right to take into consideration, and arbitrarily refused to certify as by law required to do. This is not judicial discretion or anything like it. [394] b. practice : maudamus. ’ III. One Cunningham sought to intervene in this action, and also to file a cross-petition and counter-claim on the ground that he was a tax-payer, and that a judgment against the defendants would cast a cloud on real estate owned' by him. The petition seeking to intervene was, on motion of the plaintiff, struck from the files, and léave to file the cross-petition and counter-claim was refused To these rulings, the said Cunningham excepted, and assigns the same as error. No authority has been cited by counsel in support of the right to intervene in this kind of an action, and on princple we are of the opinion that the action of the court below was right. The judgment against the defendants cannot of itself affect the tax-payer prejudicially. Besides this, it would be strange, indeed, if another could intervene and excuse, by reason of something peculiar to himself, the omission of an official duty on the part of a public officer. Affirmed.