
    Isbell v. Crawford County.
    Taxes: ms illegally levied. When a person has paid a tax which was never levied, he may, upon the refusal of the Board of Supervisors to refund the amount paid, maintain -an action against the county therefor. (Code, Sec. 870.) Following- Lauman v. The County of Des Mames, 29 Iowa, 310.
    
      Appeal from OrawforcZ District Gourt.
    
    Tuesday, December 15.
    AcnoN to recover certain school taxes which are alleged illegal, and to have been erroneously paid. A demurrer to the petition was sustained. The plaintiff appeals.
    
      Dfieleolson <& Donald, for apjiellant.
    
      George L. 'Wright, for appellee.
   Cole, J.

The petition alleged that the Board of Supervisors of Crawford County, at their September meeting, in 1871, had no certificate of the amount of taxes to be levied for teachers, school house, and contingent funds for Jackson township, but in the minutes of that meeting the amount of the taxes for each of those purposes was left blank, and the words “ not reported” were written opposite each; that af. er the adjournment of the board some person, unknown to plaintiff, erased the words “ not reported.” and inserted the rates of taxation as ten mills for the first named and seven mills for each of the other purposes; that said taxes were collected from and paid by the plaintiff, and he took a receipt therefor, which he annexes; that the amounts levied by said township were never reported to the Board of Supervisors, or the auditor, by the secretary of said district township, and said taxes were therefore void; that after plaintiff learned of the illegality of the levy, he requested the defendant to refund the money, but the same was refused by the board; that the amount so illegally and erroneously collected from him was $43.23, for which he asks judgment.

To this the defendant demurred, because the petition shows the action to have been commenced under Code, Sec. 870, which does not authorize the rendering of a judgment. The court sustained the demurrer, and hereon error is assigned.

The case of Lauman v. The County of Des Moines, 29 Iowa, 310, effectually and fully decides every question made iu this case, and unless there is a difference between Sec. 762 of Revision of 1860, and Sec. 870 of the Code of 1873, this judgment must be reversed. The following constitutes so much of each section as relates to the matter involved:

“ Sec. 762. In all cases where any person shall pay any tax, interest or cost, or any portion thereof, that shall thereafter be found to be erroneous of illegal, whether the samé be owing to erroneous or improper assessment, to the improper or irregular levying of the tax, to clerical or other errors or irregularities, the Board of Supervisors shall direct the treasurer to refund the same to the tax payer.” See. 870. The Board of Supervisors 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.”

"We hold that there is no substantial difference in these sections so far as respects the question here presented. The tax paid in this case was illegal, for that no tax was levied. It has been adjudged that it was illegal. Following Lauman v. The County of Des Moines, supra, this judgment is

REVERSED.  