Powder River Cattle Co. v. Board of County Com'rs , 3 Wyo. 597 ( 1892 )

Groesbeck, C. J.

This suit was brought in the district court for Johnson county by the plaintiff in error against the defendant in error to recover back taxes, and the penalty accruing thereon, in the sum of $5,832.64, levied and collected for the year 1886, and interest thereon from the date of payment, December 22, 1886. The defendant in error demurred in said court to the petitions, original and by way of amendment, on the ground that they do not state facts sufficient to constitute a cause of action. This demurrer was sustained by the district court, and, the plaintiff company not desiring to plead further, judgment was rendered against it for costs, and it brings error to this court. Thefacts alleged in the petitions sufficiently appear in this opinion. Three questions are submitted to us for decision in the presentation of this case: (1) Was the tax levy for the year 1886 excessive? (2) Was the action rightfully brought against the board of the county commissioners of the county of Johnson? (3) Do the allegations in the petitions show that the tax was paid involuntarily? We shall dispose of these questions in their order.

1. The following levy of taxes was made by the board of county commissioners for said year 1886: For territorial revenue, two mills on the dollar; for county revenue for the county of Johnson, for ordinary county expenses, (as plaintiff supposes,) five mills on the dollar; for county revenue for the support of the poor and lunatic, two mills on the dollar; for defraying the expenses of the district court, five mills on the dollar; for county revenue for roads and bridges, two mills on the dollar; and a tax for the support of common schools in the county, of two mills on the dollar, amounting in the aggregate to the sum of eighteen mills on the dollar of the assessed valuation of the property, real and personal, of said county. Other taxes for territorial and county purposes were levied by the board under special acts of the legislature, authorizing levies for special purposes. It is alleged that under the law in force at the time of the levy the taxes for the general purposes mentioned, territorial and county, were limited in the aggregate to 16 mills on the dollar, and that the board of county commissioners had no power or authority to levy for said purposes to exceed said limit; and that the levy of 18 mills on the dollar, as made by said board, is and was illegal, nugatory, and void, and the collection thereof was illegal and. improper, and the money collected, had, received, and held by the defendant county under and by virtue of said levy was illegally and improperly collected, had, and received by it. This compels us to construe the limitation prescribed for taxation in the law as it then stood, and which has been incorporated in section 3768 of the Revised Statutes of Wyoming. This section is as follows: “Sec. 3768. There shall be levied and assessed upon the taxable real and personal property within this territory, in each year, the following taxes: First. For territorial revenue, two mills on the dollar, when no rate is directed by the territorial board of equalization before the date in each year when the tax ought to be levied and assessed ; but in no case shall the tax for territorial purposes exceed four mills on the dollar. Second. For county revenue, for ordinary county expenses, not more than five mills on the dollar. Third. For county revenue for support of the poor, and lunatic purposes, not more than two mills on the dollar. Fourth. For county revenue for road purposes, not less than one mill, nor more than three mills, on the dollar. Fifth. The county commissioners f each county shall levy a tax sufficient to defray the expenses of the district courts for their respective counties during each year. Sixth. And, in addition to the above, the county commissioners shall levy a poll tax of two dollars for county school purposes, against each person over the age of twenty-one years and under the age of fifty years, which shall be levied and collected as other taxes; and they shall also levy a tax for the support of common schools in their county, not to exceed three mills on the dollar; but the aggregate tax for territorial and county purposes shall in no case exceed sixteen mills on the dollar per annum.” The question is whether or not the tax “for the support of the common schools in their county, not to exceed three mills on the dollar, ” is included in the limitation of sixteen mills for “ territorial and county purposes.” If it is, the tax levy in Johnson county for the year 1886 was excessive; otherwise not. It is urged with much force that the tax for the support of the common schools of the county is a county purpose, inasmuch as it is levied by the board of county commissioners, and that body has a discretion in levying the amount, to the extent of three mills on the dollar; and because this tax is levied on all the personalty and realty within the county, whether within or without the limits of a school-district; and, iur-ther, if it were not a county purpose, it could not be levied at all. The moneys collected for this purpose, together with the poll-taxes, are paid into the county treasury, and are held subject to the apportionment of the county superintendent of schools, who is required annually, on the first Monday in December, to apportion this “county school tax,” and all money in the county treasury, belonging to the “county school fund,” in such manner as to first give each school-district in his county, where there are more than eight scholars of school age in the distinct, $150, for the payment of teachers in such district, and, second,to apportion to each district, pro rata, according to the number of pupils in attendance in the schools in said district, reported to him by the several district clerks. After this apportionment, the county superintendent draws an order on the county treasurer in favor of the treasurer of each district for the amount of its proportion of this fund, and this draft is sent to the treasurer of the district. Upon the approval of the official bond of such treasurer by the board of county commissioners, the county treasurer must pay this draft, when properly indorsed. Section 3914, Rev. St. Wjo. It will thus be seen that this fund, called the “counts' school fund,” is set apart for the benefit of the several school-districts of the county, and is at no time subject to the disposition or management of the county board, whose sole duty is to levy the tax and to approve the bond of the treasurers of the school-districts. The tax is for common-school purposes, and is levied by the same body that levies the special school tax in each school-district. Is this purpose a “county purpose,” in contemplation of the law? The same legislature, in 1869, that enacted the frame-work of this law, enacted the school law, and therein provided that the county commissioners, at the time of levying tax for county purposes, shall cause to be levied a tax for the support of schools within their county, as provided by law, which shall be collected by the county collector at the same time and in the same manner ns territorial and county taxes are collected. Section 3964, Rev. St. Wyo. This provision, with slight modification, has run through every compilation and revision of our laws. It seems to be a concurrent and contemporaneous legislative construction of the term “county purposes,” that excludes from such purposes the general school-tax collected from all the property in the county. It was held by the supreme court of Minnesota that, where a maximum tax of three mills on the dollar for county purposes was prescribed by law; it included only ordinary county expenses, and thatthe tax for maintaining common schools of two mills was a district, and not a county, tax. But this school tax was distributed in a different manner from our general school tax. It seems that each district was paid the amount of tax collected within its limits. McCormick v. Fitch, 14 Minn. 252, (Gil. 185.) It was said by the supreme court of Florida that “it will be observed that, though the maintenance of schools by counties is a ‘county purpose’in a special sense, the law makes a distinction between county-taxes, raised for the ordinary purpose of paying the expenses of maintaining county government, and county school taxes, raised for supporting schools. They are deemed distinct funds for distinct objects. ” Jones v. Board of Pub. Inst., 17 Fla. 411. Butthe schools there were a county charge, and under the entire management, care, and control of a board of public instruction of the county, who were authorized and required to contract for the erection of school-houses, and to contract with teachers employed in the schools. They had also, under the law, the duty of determining the amount necessary to be raised by annual tax for the support of common schools in their county. There was more reason in holding that the support of the schools of the county was a county purpose, in that state, as they were a county burden, and yet thesame distinction seems to be made there as was made in Minnesota.

If the legislature had intended to have the limitation of 16 mills include such “ tax for the support of the common schools,” the exception and limitation would have read, in effect: “ But the aggregate tax for all purposes mentioned in this section shall in no case exceed sixteen mills on the dollar per annum.” It is true that by the law passed by the legislative assembly of 1886 the school-tax limit and maximum was. raised one mill, and the entire maximum limit, by the same act, raised from fifteen to sixteen mills; but it must be recollected that the territorial limit had before been raised from three to four mills, and at the same session, and in an act taking effect the same day, the road-tax provision was amended by providing that the maximum levy should be three mills, and the minimum one mill, on the dollar; thus amending the old law, which provided for a maximum levy of not more than two mills for that purpose. It is as reasonable to suppose that the legislature intended to increase the levy for territorial and county purposes as well as for common-school purposes, particularly as the maximum levy for territorial purposes and for county road purposes had been increased by legislation. A careful examination of the section (3768) under consideration would seem to indicate that three distinct objects and purposes were in view in the legislation, — territorial purposes, county pux-poses, and county school purposes or common-school purposes. The first subdivision treats of and provides for a territorial revenue, the second, third, fourth, and fifth, respectively, of county revenue for ordinary county purposes, for poor and lunatic purposes, for road purposes, and for defraying the expenses of the district court within the county. Then follows the sixth subdivision, which provides that, “in addition to the above,” — that is, in addition to territorial and county revenue for territorial and county purposes, —a poll-tax shall be levied for county school purposes, and “also” a tax for the support of the common schools in the county. This indicates that three distinct purposes were in contemplation in this legislation. The school-districts are distinct corporate entities; and they are corporations, not of the county, but in the county. Section 3925, Rev. St. Wyo. The “county school fund,” so called, appears to be created by the general school-tax levied by the board of county commissioners, the poll-tax, and such fines and forfeitures as may be paid into the county treasury according to law. The districts, in their corporate capacity, are entitled to this, and not the county. Not one dollar of this fund can be devoted to any “county purpose.” At the apportionment and distribution of this fund, the several school-districts become entitled to their shares of this fund, which requires but a mere mathematical computation to ascertain; and prior to this time the county has not the slightest interest or right to any portion of this fund, and the vounty board has nothing to say in its management, disbursement, or distribution. It belongs to the school-districts. Brown v. Nash, 1 “Wyo. 85, 96. It is within the province of the legislature to make the education of the young a matter of state or of county concern, management, and control; but such is not the manifest intent of the law. It is made a neighborhood or school-district concern, and the care, management, and government of the free schools are intrusted to local corporations; a recognition of local pride, and a bringing home to the people the necessity of the great debt the present generation owes to the future generations. Indeed, while this general aid is undoubtedly of great assistance to the school-districts, yet the local and special school-district taxes are generally largely in excess of the maximum rate of the tax known as the “general school tax. ” This general tax is in the nature of an aid by the tax-payers of the county, and not of the county itself in its corporate capacity, to indigent and struggling districts, as well'as to those more densely populated. A sum certain is set apart to each district which has eight or more pupils of school age before the pro rata distribution is made. At the time this tax was levied, the county board had no voice or control over the formation of school-districts. That power was lodged in the hands of the county superintendent of schools, and tne theory of the statutes relating to schools is to keep them distinct and separate from county affairs, and to make their management, and the distribution of school funds when apportioned and collected, a matter of local concern, without the slightest control or interference of the fiscal board of the county, except in the matter of the approval of the bonds of the treasurers of the school-districts, — a duty that devolves upon that body as to precinct officers generally.

2. Under our statute, the corporate name of the county, and under which it must be sued, is “ the board of the county commissioners of the county of-. ” Section 1795, Rev. St. Wyo. There is no doubt, then, that the county has been sued in the proper name, if this action can be maintained against it. The law governing the procedure is found in section 3055 of our Revision, and is as follows: “Actions to enjoin the collection of taxes and assessments must be brought against the officer whose duty it- is to collect the same. Actions to recover back taxes and assessments must be brought against the officer who made the collection, or, if he is dead, against his personal representative; and when they were not collected on the tax-list, the corporation which made the levy must be joined in the action : provided, that when the money derived from said taxes or assessment has been actually paid over to any municipal corporation for whose use and benefit it was levied or collected, then an action shall be brought against said municipal corporation to recoversaid.taxesorassessments.” Sess. Laws 1886, c. 60, § 707; Rev. St. Ohio, § 5850. The following provisions may be found in section 3821 of the Revision: “In all cases where any person shall pay any tax, or any portion thereof, that shall thereafter be found to be erroneous or illegal, whether the same be owing to clerical errors or other errors, the board of county commissioners shall direct the treasurer to refund the same to the tax-payer. ” This section, it is claimed, fixes the liability, of the county, and the following decisions have been cited which are in point: Lauman v. County of Des Moines, 29 Iowa, 310, 312, 315, Coal & Iron Co. v. County Com’rs, 59 Md. 255, 261; City of Indianapolis v. Mc-Avoy, 86 Ind. 587, 590. The first of these cases is very broad, and appears to be somewhat modified by later Iowa decisions. Dubuque & S. C. R. Co. v. Board of Sup’rs of Webster Co., 40 Iowa, 16; Butler v. Board, 46 Iowa, 326; Railroad Co. v. Lowry, 51 Iowa, 486, 1 N. W. Rep. 782; Stone v. County of Woodbury, 51 Iowa, 522, 1 N. W. Rep. 745. Under similar provisions it is held in Iowa that it makes no difference whether or not the taxes were paid voluntarily or involuntarily; if erroneous or illegal, they must be l’efunded. Lauman v. County of Des Moines, supra; Einhards v. Wapello Co., 48 Iowa, 507. In this later ease cited it was intimated that application should be made to the board of supervisors befox’e the county is put to costs, and that the doctrine of the common law’ that he who voluntarily pays a tax shall not afterwards be heard to say that it was illegal was based upon the idea that he should have resisted payment of the claim, and that this doctrine pertained to the l’emedy, and not to the essence of the claim ; and the rule was there reiterated that the provision of the Iowa statute (similar to section 3821 of our Revision) provided for the refunding of the tax if the same was erroneously or illegally exacted or levied, even though voluntarily paid. If there is any conflict between these sections, — section3055, Rev.St. Wyo., which is found in our Code of Civil Procedure, and section 3821, which is a part of the l’evenue or taxation law, — it becomes necessary in this controversy to construe them, and to determine which should govern. It appears that in the case of Dubuque & S C. R. Co. v Board of Sup’rs of Webster Co., supra, no point was raised or decided whether or not mandamus— that being' the form of the action pursued In that case — would lie; and in the other Iowa cases decided, the action was for the recovery of the taxes. It has been repeatedly held that, where there are conflicting sections in the same act the last section should govern, even in a revisory statute, (Suth. St. Const. § 220, and cases cited,) and this for the reason that, “being later in position, the prevailing provision is deemed a later expression of the legislative will.” The learned author further says: “This rule, and the reason for it, have been criticised, because, all the provisions of an act being adopted at the same time, there is no priority in point of time on account of their relative positions in the statute. This is strictly true; but, in the reading of a bill, matter near the close may be presumed to receive the last consideration, and, if assented to, is a later conclusion. ” But we are relieved from adopting this construction, which may be correct, but which seems to be a rule that should be established only after the most careful consideration. The section 3821 appears in the compilation of 1876, (section 43, p. 560,) while section 3055 was enacted in the Code of Civil Procedure adopted in 1886, (Sess. Laws 1886, c. 60, p. 128,) and was not a part of the old Code, or known to our laws prior to that time. Although both of these sections are found in our Revised Statutes, the rule is as stated in Suth. St. Const. § 161: “Where two statutes in pari materia, originally enacted at different periods of time, are subsequently incorporated in a revision, and re-enacted in substantially the same language, with the design to accomplish the purpose they were originally intended to produce,the times when they first took effect will be ascertained by the courts, and effect will be given to that which was the latest declaration of the will of the legislature, if they are not harmonious.” The following cases are cited: Winn v. Jones, 6 Leigh, 74; Blackford v. Hurst, 26 Grat. 206; Hurley v. Town of Texas, 20 Wis. 638; U. S. v. Bowen, 100 U. S. 508; Vietor v. Arthur, 104 U. S. 498; Bank v. Patty, 16 Fed. Rep. 751, — and a careful examination of these authorities shows that the author has very clearly deduced the rule which he lays down on this subject. It follows, therefore, that the Code of 1886 being the latest declaration of the legislative will, effect must be given to it, and that, therefore, section 3055 must supplant the provisions of section 3821, as the latter section was enacted first.

It seems thatsection 3055 is a right given by the statute, and a specific remedy provided, and that this right can be vindicated inno otherway than that prescribed therein. Suth. St. Const. § 399; Shelton v. Platt, 139 U. S. 591, 597, 11 Sup. Ct. Rep. 646. Of course, this section being remedial in its nature, it must be liberally construed. Indeed, this is required in the Code of Procedure itself (section 2338, Rev. St.;) but this liberal construction cannot so operate as to defeat the plain legislative intent, or to uphold an absurd construction. How, then, shall this section 3055 be construed? It provides that “actions to recover back taxes and assessments must be brought against the officer who made the collection, if living, or, if he is dead, against- his personal representative.” So far, it is plain. This is, in substance, the Ohio statute; but we have a proviso annexed to this enactment, which it is contended materially alters the remedy. It is “provided that, when the money derived from said taxes or assessments has been actually paid over to any municipal corporation for whose use and benefit it was levied or collected, then an action shall be brought against said municipal corporation to recover said taxes or assessments.” This statute without the proviso was neld in Ohio to have created new statutory rights of action, not theretofore existing, and was enacted in order to provide a simple and speedy remedy to the tax-payer. Stephau v. Daniels, 27 Ohio St. 527. Before its enactment, in order to recover taxes paid under protest, or involuntarily, the taxpayer would have doubtless been compelled to parcel out his I’emedies, to resort to the county for all taxes collected by it, to the different school-districts of the county for the general school tax collected under the levy for the support of common schools, and paid over to them, and to ask the territorial legislature for relief from territorial taxes. Price v. Lancaster Co., 18 Neb. 199, 24 N. W. Rep. 705. “In some states provision is made by law for the refunding by the state, through the counties, of sums illegally collected as state taxes, and under such a provision the county may be sued on a presumption that the state has performed its duty in supplying the means.” Cooley, Tax’n, p. 804. The only provision of our law is that found in section 3836, Rev. St., which states that “each county is responsible to the territory 'for the amount of tax levied for territorial purposes, excepting such amounts as are certified to be double or erroneous assessments; and no allowance or credit shall be given to any county for any part other than this of such tax levy remaining uncollected.” This section was amended by chapter 45, and by section 10 of chapter 72, Sess. Laws 1890, so that said section 3836 shall read as follows: “Each county is responsible to the territory for the amount of tax levied for territorial purposes, and no allowance or credit shall be given to any county for any párt thereof. ” But this section, as originally enacted, was restored and re-enacted by the later act, chapter 36 of the Session Laws for 1890-91.

The state or territory had never on the statute-books any law allowing the refunding of state taxes, except for erroneous and double assessments. In the case of Lauman v. County of Des Moines, supra, it was held that a tax should be refunded, erroneously or illegally levied, though voluntarily paid, and that this would necessarily include state taxes, as it was presumed that the county has always state moneys in its treasury, and that the duty was upon the county in the first instance to refund this money, and all of it, collected for the different funds; but this decision has been much modified and explained away in recent Iowa decisions cited supra, particularly in Railroad Co. v. Lowry, 51 Iowa, 486, 488, 489, 1 N. W. Rep. 782, where, in the opinion, it was said: “ It may be conceded for our present purpose that a tax of this kind, when declared illegal, must be refunded to the tax-payers under Code, § 870. But it is very clear that such illegal tax cannot be refunded out of county revenue. Butler v. Board, 46 Iowa, 326. It must be repaid, if at all, from the special fund created by the tax itself.” It is clear, then, that the county could not be liable for state or territorial taxes collected by it under our statutes, and under the common law it could doubtless only be sued for taxes paid over to it by the collecting officer, and received to the use of the municipality. Cooley, Tax’n, p. 805; Railroad Co. v. Buffalo Co., 14 Neb. 51, 55, 14 N. W. Rep. 539. It would appear that the object of the statute, section 3055, and the other sections of the same chapter, was to afford a simple and speedy remedy to the tax-payer, to allow him an injunction if the tax was alleged to be illegal before its collection, and a right to recover all taxes paid, after collection, from one source, and without a multiplicity of suits. The only exception is in the proviso, and that is when the tax money has been paid over to a municipal corporation, for whose use and benefit it was levied and collected; and then such corporation must be sued. It is insisted for plaintiff in error that counties are included in this term, “municipal corporations,” and we a re compelled to give our construction of its use in this proviso. The authorities cited by counsel for the respective parties show that these words are employed in different uses, in a broad sense, and in a proper or restrictive sense. In one case it has been said : “That ‘municipal corporations’ especially refers to counties, school-districts, and cities, etc., cannot admit of debate. It has never been construed otherwise.” Land Co. v. Carroll Co., 39 Iowa, 166. See Curry v. District Tp. of Sioux City, 62 Iowa, 102, 104, 17 N.W. Rep. 191; Laramie Co. v. Albany Co., 92 U. S. 308; Town of Freeport v. Board, 41 Ill. 499; Dowlan v. County of Sibley, 36 Minn. 430, 31 N. W. Rep. 517. But in the case of State v. Leffingwell, 54 Mo. 465, the court say: “Wethus perceive that there are not only two classes of public civil corporations; but the word ‘municipal’ has double meanings, — one a narrow,confined meaning, as relating to municipivm, or free town, or, as we should say in the present age, relating to cities, towns, and villages; and another broader and more usual signification, relating to the state or nation. And therefore, while the words ‘municipal corporations’ have a well-defined meaning, and embrace cities, towns, villages, and nothing more, the words are not at all equivalent to those other words, ‘for municipal purposes.’ The latter embrace, by the common speech of men before and since the days of Blackstone, state or national purposes. And therefore, while municipal corporations are for municipal purposes, there are other corporations for municipal purposes that are not strictly municipal corporations. ” Tn a prior Missouri case thecourt say: “The general accepted definition of a ‘municipal corporation’ would only include organized cities and towns, and other like local organizations, with political and legislative powers for the local civil government and police regulations of the inhabitants of the particular districts included in che boundaries of the corporations." See Dillon's definition therein : “ ‘ Thus an incorporated school-district or county, properly speaking, is not, while the city is, a municipal corporation.’ Again, in speaking of school-districts, road-districts, counties, townships, etc., Judge Dillon says: ‘They are purely auxiliaries of the state, and to the general statutes of the state they owe their creation ; and the statute confers all the powers they possess, prescribes all the duties they owe, and imposes all the liabilities to which they are subject. Considered with reference to the limited number of their corporate powers, the bodies above named rank low down in the scale or corporate grade of corporate existence; and hence have been frequently termed “quasi corporations.” This designation distinguishes them on one hand from private corporations proper, such as cities or towns acting under charters,’ etc. Dill. Mun. Corp. pp. 30-33. From the foregoing authorities, as well as from the reason of the case, 1 am satisfied that the term ‘ municipal corporations’ does not, in its common acceptation of its legal sense; include school-districts or corporations organized for the purpose of education only, either in connection with our som-mon-school system or otherwise; and that the legislature, in rendering officers of a municipal corporation ineligible to the office of county justice, never intended to include school trustees.” Heller v. Stremmel, 52 Mo. 312. See People v. Johnson, 30 Cal. 99; People v. Sacramento Co., 45 Cal. 692. Say the court in the case of Downing v. Mason Co., 87 Ky. 208, 8 S. W. Rep. 264: “It [a county] is not, in the strict legal sense, a municipal corporation. like a city. As a quasi corporation it is distinguishable both from a private corporation and a municipal corporation proper.” In short, the statement in the case of Land Co. v. Carroll Co., supra, is too broad, for sometimes the words “municipal corporations” are held to include counties, and not at other times. In Dowlan v. County of Sibley, 36 Minn. 430, 31 N. W. Rep. 517, the word “ municipal’’was considered to have been used in the sense of “political” or “public.” The term is evidently to be construed either way, in the broad sense, or in the proper or restrictive sense, with reference to the legislative intent and habit in the same or kindred legislation. The construction hinges on the context. A careful examination of this section 3055 leads to the belief that the legislature employed these words in their proper, limited, and restrictive sense, and not in a broad sense, as to include all corporations, political and public; otherwise, the mischief sought to be remedied, and the evil attempted to be cured, w'ould not be affected, and the proviso to the section would absolutely defeat the plain intent of the legislature, for if the term “municipal corporation, ” in the proviso, includes counties, it must necessarily include school-districts as well, and the tax-payer seeking to recover illegal or erroneous taxes would be ■as perplexed and harassed as before the passage of this remedial legislation. He would be forced to sue the county for the moneys collected and paid over to it for its use and benefit, each of a number of school-districts in the county for its proportion of general school tax apportioned to it, and to seek relief from the legislature for territorial or state taxes illegally levied or collected. Again, a proviso carves special exceptions only out of the enacting clause; and those who set up such an exception must establish it as being within the words as well as the reason thereof. U. S. v. Dickson, 15 Pet. 141. The petition in the court below shows, and the law was and had been for more than four years before the enactment of section 3055, that the county treasurer should be ex officio collector of taxes. When the plaintiff in error paid its taxes which it seeks to recover, the payment was made to the collector and to the county treasurer, and, so far as county taxes proper were concerned, they were then paid over to the proper custodian of the county, and for its use and benefit. Then, if a county is a “municipal corporation ’’within the meaning of the section and the proviso, no case could possibly arise where the collector of county taxes could be sued. If, on the other hand, keeping in view the language invaridbly used in our legislation, treating towns and cities as the only municipal corporations known to our laws, we hold that the legislature used these words in their proper sense, we have no difficulty in construing the proviso of the section reasonably and consistently with the other parts of the section. The tax collector, and he alone, is responsible; and the remedy must be pursued against him, if living, or his personal representatives if dead,for the space of one year, — the limitation of time for bringing such suits imposed by the statute, — unless the remedy is sought against a municipal corporation, a city, or town, in which case, if the tax money has been actually paid over by the municipal collector to the municipality for whose use and benefit it was levied and collected, the city or town must be sued, instead of the collector. The taxes levied for such municipalities are wholly levied and collected for their own use and benefit, and are disbursed by them ; hence there is no necessity for pursuing the collector, as there is but one corporation to look to for the money. The county, by law, is made the collecting agent for the state or territorial taxes, for county taxes proper, for the general school tax, and for special school-district taxes, thus acting for three distinct corporate entities; while a municipality, such as a town or city, is the sole beneficiary of the tax levied by it.

It may be said that this statute is unnecessarily severe upon collectors, as they might not be legally entitled to reimbursement for whatever they might be compelled to pay in a suit to recover taxes. It was suggested in a very able treatise found in the Weekly Law Bulletin, (volume 14, pp. 243, 261,) an Ohio publication, that the collector could keep the money, when aware that the payment was made Under protest, and with the intention of instituting suit, for the year, and until the action became barred by the limitation referred to and provided in the act, and thereby protect himself; but this pleasing construction was, so far as the Ohio law was concerned, repudiated by the Ohio supreme court in the case of Ratterman v. State, 44 Ohio St. 641, 10 N. E. Rep. 678, where it was held that the officer, having received the moneys as treasurer, and, it seems, as collector also, must pay it out according to law; and that any other course on his part would work infinite embarrassment to the state and to the several counties, municipalities, towns, and school-districts entitled to portions of the public moneys, as they might be left without funds during the litigation, and the administration of public affairs be greatly, if not wholly, obstructed, while the money to which they were entitled was lyingidlein thehands of the treasurer, subject to the perils incident to such a situation ; and that the treasurer, if he found the duties of his position involving too .much hardship, or too much liability, could solve the problem by resignation. It is not profitable to discuss this matter at length, as the duty of courts is to enforce the laws as they find them, if constitutional, and not to remodel them to suit a judicial whim. The statute giving the remedy may appear to be a novel one. A recent decision of the supreme court of the United States shows that one similar to it has been in operation in Tennessee since 1873, and was pronounced by that court to be simple and effective. Tennessee v Sneed, 96 U. S. 69. But in that state, if the court determines that the tax was wrongfully collected, upon its certificate to that effect the comptroller issues his warrant for the same, which shall be paid ill preference to other claims on the treasury." This actas to state taxation has been upheld by the courts of Tennessee. Shelton v. Platt, 139 U. S. 591, 597, 11 Sup. Ct. Rep. 646. It is true that in several instances suits have been brought against the county in its corporate capacity, the board of the county commissioners in the territory, and without apparent question, for the recovery of illegal taxes, since the adoption of the present statuteunder consideration ; butthe cases are few, and only one has been cited which found its way into the territorial supreme court. This question wasnot raised there, and it seems that the case was submitted upon the merits, without question as to the method of procedure. Fremont Co. v. Moore, (Wyo.) 19 Pac. Rep. 438.¹ Although eminent counsel were represented in the case, the point as to the right to sue the county was not raised or alluded to in the briefs of counsel or the opinion of the court. As the statute was then a fresh one, and new in its application, and the question was not presented to the court, we do not feel bound by the silence of the court on this point. The disposition of these two points renders it unnecessary to discuss the remaining one, — that of voluntary payment, — which is a vexed question, and one that should be presented to the court upon a fuller argument, and a more careful consideration of the case. For the reasons assigned herein, that the tax was not excessive, and that the action could not have been brought or maintained against the defendant in error, the judgment of the district court of Johnson county, sustaining the demurrer to the several petitions, and entering judgment against the plaintiff in error on failure to plead further, is affirmed. .

Merrell, J., concurs.

1 Ante, 200.