
    [No. 5791.]
    Spaulding et al. v. Patterson.
    1. Taxation — Uniformity—The doctrine of Leonard v. Reed, ante, followed.. — (318)
    2. Damages — Measure—Plaintiff’s goods are sold for an illegal tax, and purchased hy his representative .for a sum in excess of the tax. This excess is tendered to him. He is entitled to recover the amount hid at the sale, less the amount tendered. — (318)
    
      Appeal from La Plata District Court — Hon. ■ James L. Russell, Judge.
    Mr. T. C. Perkins, for appellant.
    No appearance for appellee.
    In the summer of .1904, The Spaulding' Manufacturing Company, a copartnership, engaged in the manufacture of buggies and wagons at G-rinnell, Iowa, shipped from .their establishment a carload of vehicles to Durango, in this state. They were shipped for the purpose of sale in Colorado, and were stored in a building on Main street, in Durango. By virtue of a revenue act found in the Session Laws of 1903, p. 408, the assessor of La Plata county assessed the vehicles and issued a warrant directed to the treasurer of the county for the collection of the taxes so assessed. Under this warrant certain of the vehicles were taken possession of and advertised for sale by the treasurer. At the sale Morgan, the representative of The Spaulding' Manufacturing Company,.bid in the property seized for the sum of $200.00, which he paid to the treasurer. The tax and costs amounted to $173.60, and the difference, $26.40, was tendered appellants, which they refused to receive. Thereafter The Spalding Manufacturing Company, brought .suit to recover from Patterson, the treasurer, the value of the vehicles seized and sold by him. The tender was kept good by paying into court $26.40 for the use of The Spaulding Manufacturing Company, At the trial, under the issues made by the pleadings, the facts were established as above narrated.. The judgment of the court was in favor of the defendant, from which plaintiffs appealed to the. court of appeals.
   Mr. Justice Gabbert

delivered the opinion of the court:

In Leonard v. Reed, ante, 307, we held that the act under which the tax was levied and the property of the plaintiffs seized and sold, was obnoxious to the provision of our constitution on the subject of taxation, for the reason that “it imposes a tax upon goods and merchandise brought into any county subsequent to the first day of May in any year for temporary lodgment and sale, and by necessary implication relieves goods of a similar character brought into the same county at the same time from the burden of such tax, if they be not placed upon the market. This discrimination robs the law of the indispensable requisite that taxes shall be uniform upon property within the jurisdiction of the body imposing them.” On the authority of the Leonard case the judgment of the district court must" be reversed.

Plaintiffs seek to recover the value of the vehicles seized and sold. In the circumstances of this case we think they are only entitled to judgment for the amount bid at the sale, less the sum paid into court for their use.

The judgment of the district court is reversed and the cause remanded with. directions to enter judgment in accordance with the views expressed in this opinion. Reversed and remanded.

Decision en banc.  