Beecher v. County of Clay , 52 Iowa 140 ( 1879 )

Day, J.

i stvi'ote of re?overy'of laxes. The only qnestion in the case is as to when the statute of limitations began to run. In Callanan v. The County of Madison, 45 Iowa, 561, it was held fhat a oause of action accrues against the county at the very moment of the 2:>a'yment of illegal

taxes, and that from that time the statute of limitations runs. This action is brought to compel a performance of the duty 2)rescribed in section 870 of the Code, which jnovides: “The board of siq^ervisors shall direct the treasurer to refund to the tax payer any tax, or any portion of a tax found to have been erroneously or illegally exacted or paid, with all interest, and costs actually paid thereon.” . It cannot be doubted that immediately upon the payment of the illegal tax, the plaintiff* might have demanded of the board of siq^ervisors an order for the refunding of it, and that if such demand had been made the statute of limitations would at that time have begun to run against an action for a writ of mandamus. The question now resented is, can the plaintiff, by neglecting to demand of the board an order for the refunding of the taxes, delay the running of the statute of limitations? This question was determined in Prescott v. Gonser, 34 Iowa, 175, in which it is said ; “ That the action of mandamus cannot be maintained •until there has been a refusal to perform the official duty sought to be enforced is true, but to hold that a plaintiff, who has a right to demand performance at any time, may delay such demand indefinitely, would enable him to defeat the object and purpose of the statute. It is certainly not the policy of the law to permit a party, against whom the statute runs, to defeat its operation by neglecting to do an act which devolves upon him, in order to perfect his remedy against another.”

_._. knowledge of illegality. II. The plaintiff claims that he is entitled to relief under section 2530 of the Code, which provides that in actions for relief on the ground of fraud or mistake the action sllaR not be deemed to have accrued until the fraud or mistake shall have been discovered. The court finds that the plaintiff had no actual knowledge that the ten-mill tax was not regularly levied until 1877. The action of plaintiff is not based upon his mistake as to the fact of a levy of this tax. The plaintiff’s ignorance of tlie fact that there was no levy is a mere incident, and not the foundation of hip cause of action. If he had known that there was no levy, he might still have paid tlie tax, believing that the tax was nevertheless valid, and, if he had done so, he would, under section 870 of the Code, have been entitled to an order refunding it. Tlie gravamen of the plaintiff’s complaint is not that he made a mistake as to the fact of levy of the taxes, but that he has paid illegal taxes which the board of supervisors refuse to order refunded. The case does not come under the provisions of section 2530 of the Code. The statute of limitations began to run when the payment of illegal taxes was made, June 20,1873, and this action is, therefore, barred. See section 2529, subdivision 3. The judgment is

Reversed.