Smithberg v. Archer

Ladd, J. — It may be conceded for the purposes of this case that, inasmuch as the property was assessable, the failure of the assessor of Estherville to return the assesment cannot be taken advantage of after the sale. The general law relating to assessment, levy, and collection of taxes is made applicable to the mulct tax by section 13 of chapter 62 of the Acts of the Twenty-fifth. General Asssembly, and it would seem that under section 1398 of the Code the treasurer may assess, in event of an omission by the assessor to do so; and that under the following section no question concerning mere irregularity, without more, may be raised after the sale. Lathrop v. Irwin, 96 Iowa, 713. But section 9 of this act expressly provides that the board of supervisors shall levy the mulct tax (Hubbell v. Polk County, 106 Iowa, 618), and section 10 that, when this is done, “the county auditor shall, upon the levy made as aforesaid, certify the same forthwith to the county treasurer with names of persons and property, and amount of tax, and a statement of the costs that have accrued either before the board of supervisors or in the district court, and said certificate and list shall be full authority for the treasurer to enter the same upon the tax books of the county and proceed to collect the same.” No levy of such a tax by the board of supervisors is directed by Code, section 2436, eb seq. But under the act referred to it was made obligatory on the board, and only when so made might the auditor certify the lists to the treasurer. This alone was the treasurer’s authority for collecting the tax. The act then required, rather than dispensed with, the levy, and without this the sale was void. Iowa Railroad Land Co. v. Woodbury County, 39 Iowa, 173; Moore v. Cooke, 40 Iowa, 290; Scott v. Union [217] County, 63 Iowa, 584; Ellis v. Peck, 45 Iowa, 114; Early v. Whitingham, 43 Iowa, 162; McCready v. Sexton, 29 Iowa, 356; Hintrager v. Kiene, 62 Iowa, 605. — Aeeirmed.