Allerton v. Monona County

Given, J. On October 15, 1897, the plaintiff filed his petition in two counts, asking to recover one thousand four hundred and twenty-nine dollars and seventy-four cents, taxes levied upon lands owned by him to pay for constructing a ditch, which taxes he paid under protest, and which the defendant’s board of supervisors refused to order refunded. The sole ground alleged for recovery is that the construction of the ditch is of no benefit whatever to plaintiff’s land. No 561 allegations are made showing that the tax was for any other reason illegal. The defendant demurred to each count on the ground that they fail to set forth any matter on account of which the said tax is erroneous, illegal, or contrary to law. Plaintiff relies upon the provisions in section 1852, McClain’s Code, that, in actions for recovery of taxes erroneously or wrongfully assessed, “it shall only be necessary to prove that such lands so assessed were not benefited by the location, construction or maintenance of such ditch, drain or water course.” Section 1917 of the present Code, which took effect prior to the filing of this petition, and prior to the holding on the demurrer, provides that, on appeals from the assessment- made in such cases as this, “it shall not be •competent to show that the lands assessed were not benefited by the improvement.” These statutes simply fix a rule of evidence. The rule pertains exclusively to the remedy, and it was within the power of the legislature to change it. See Coo-ley, Constitutional Limitations, section 450; Southwick v. Southwick, 49 N. Y. 510; Parsons v. Carey, 28 Iowa, 431; Wormley v. Hamburg, 10 Iowa, 22; Wood v. Brolliar, 10 Iowa, 591; Land Co. v. Soper, 39 Iowa, 112; Tilton v. Swift, 10 Iowa, 78; Drake v. Jordan, 73 Iowa, 707; Kossuth County v. Wallace, 60 Iowa, 508; Richman v. Board, 70 Iowa, 627; Chambliss v. Johnson, 77 Iowa, 611. This •case having been tried under the present Code, .the rule of evidence therein prescribed applies. Wormley v. Hamburg and Wood v. Brolliar, supra. It is certainly clear that the present Code controls, and that under it plaintiff cannot be permitted to prove that his land is not benefited by the ditch. It follows therefrom that in neither count has he •shown that the tax is illegal, or that he is entitled to recover -as demanded. This conclusion fully disposes of the case, and it is unnecessary that we consider the other questions raised by the demurrer to the second count of the petition. The demurrer was properly sustained. — Aeeirmed.