School District No. 127 v. School District No. 45

The opinion of the court was delivered by Smith, J.: The facts recited in the statement leave no question of the want of jurisdiction in' school district No. 127 to levy any tax against the land or property detached therefrom and attached to school district No. 45. It is equally apparent that school district No. 127 did not make or attempt to make any levy of any tax on the property for the year in question. It also appears from the petition that school district No. 45 did legally levy a tax on the property, though at a higher rate than was extended on the tax-rolls and collected by the county treasurer. The word “levy,” as applied to taxes, is used in various meanings; but, as applied to the determination of the amount or rate of taxes to be charged to the collective body of taxpayers, it is a legislative function, to be exercised only by the state or by some inferior political division thereof to which the power is delegated by the laws of the state. On the other hand, the duty of the county clerk to extend the levy upon the tax-rolls of the county is purely ministerial, and, unless a legal levy has previously been made, affords no warrant for the collection of a tax. (27 A. & E. Encycl. of L. 729, 730, and notes; 5 Words & Ph. Jud. Def. 4101, and cases there cited.) It can not be said that the county clerk extended on the rolls a levy by school district No. 127 against the property in the strip attached to school district No. 45, as there was no such levy to extend. The county clerk, whatever was in his mind, simply extended upon the tax-rolls, against the property in the detached strip, a levy less in amount than had been legally made by school district No. 45. Neither his action in this respect nor the fact that a higher rate should have been ex [644] tended, and collected can deprive school district No. 45 of the money which was lawfully collected for it. The mistake of the county treasurer in paying money which belonged to school district No. 45 to the treasurer of school district No. 127 gave no right to the latter to retain the same or to refuse the demand of school district No. 45 therefor. ■ The order and judgment of the district court is affirmed.