
    Lyman et al. v. Faris et al.
    1. Bes Adjudicata: validity of tax: action against public officer. The validity of a -tax having- been determined in an action against the officers of the county to compel its collection, it was held that such determination, in the absence of„fraud or collusion, was conclusive upon the tax payers, in whose interest'the defense to the action was made by their officers.
    
      Appeal from am, order of Hon. L. O. Blanchard, Judge of the Marion Oircwit Ooumt.
    
    Friday, April 23.
    The plaintiffs presented a jietition to the judge of the court below in which it was alleged that they were tax payers in Liberty township, Marion county, and that a certain tax of five per cent upon the taxable property of said township, levied in aid of the construction of the Albia, Knoxville & Des Moines Railroad was illegal and void, and praying that the defendant Faris, who is the treasurer of the county, be enjoined from collecting the same. An order was made requiring notice of the application for injunction to be given to the defendants. The notice was given, and the -defendants filed an answer, and affidavits were presented by the respective parties. Tbe cause was submitted upon tbe pleadings and affidavits, and an order was made overruling tbe motion for an injunction. Erom this order tbe plaintiffs appeal.
    
      Perry & Townsend, for appellants.
    
      T. J. Anderson and Barcroft, Owen c& McOaughan, for appellees.
   Eoturock, J.

Tbe question as to tbe validity of tbe tax in controversy has already been before tbis court in tbe cases of Merrill v. Welsher et al. and Merrill v. Faris, 50 Iowa, 61. One of those actions was brought . . , ° . against tbe board oí supervisors to obtain a writ of certiorari to test tbe authority and power of tbe board to pass a certain resolution declaring said tax abated, and directing tbe county treasurer not to collect it. Tbe other action was brought against tbe treasurer to obtain a writ of memdarrms to compel tbe collection of tbe tax. It was finally determined in those actions that tbe tax was valid, and that there was no authority in tbe board of supervisors to abate it, and tbe treasurer was ordered to proceed to its collection.

After tbe final determination of those actions, tbis action was commenced by certain of tbe tax payers of Liberty township, in which they seek to enjoin tbe treasurer of tbe county, and Merrill, tbe assignee of the railroad company, from proceeding to tbe collection. In addition to what was alleged against tbe validity of tbe tax in tbe other cases, it is now averred that tbe levy is void because of certain other matters which are fully set out in tbe record, but which, we think, need not be particularized here, because, in our opinion, tbe adjudication in tbe other cases, that the tax was valid, is binding upon tbe plaintiffs.

There is no averment that tbe adjudication in those cases was collusive or fraudulent. Indeed, tbe record conclusively shows that counsel representing the board, of supervisors and the treasurer resisted the actions with great zeal and pertinacity, and never abandoned the defense until the overruling of a petition for rehearing in this court. It cannot be denied that the former actions were brought to enforce the tax, the collection of which is now sought to be enjoined. The question at issue is identical with that determined in the other cases. It involved the validity of the tax, and the defense in the other actions was that the levy was illegal and void, and that there was no authority to collect it. Here the plaintiffs claim that the tax is illegal and void, and they ask that the treasurer be enjoined from doing what, by the final judgment in the other cases, he was commanded to do. The only difference is that the plaintiffs claim that there are other grounds for declaring the tax void than those adjudicated in the former actions. This can be of no more avail to the plaintiffs than it would be to the original parties. If the validity of this tax was determined without fraud or collusion, that determination is conclusive upon the parties and their privies. But it is claimed that the plaintiffs herein were not represented by the defendants in the former actions; that there was no privity between them; that' the officers of the county were indifferent between the parties, and that their acts were as much in privity with one as the other. But the record shows that the officers refused to perform what was claimed to be a duty, and sought by a resolution to abate the tax. They acted adversely to the rights of the claimant of the fund, and in the interest of the tax payer, and in his behalf denied the legality of the tax. It seems to us if we were to hold that there was no privity between the tax payers and the officers who were made defendants in the other actions, the writs of mandamus and certiorari and proceedings thereunder might as well be abolished, because if they may be annulled by a mere action by the party in interest, they are totally unavailing and determine no substantial right. It will not do to allow parties in interest to fight their legal battles over the shoulders of a public officer, and then claim that the judgments are not binding upon them because they were not parties nor privies. We think the parties in this case are estopped and concluded by the former adjudication upon the same grouhd as the plaintiff was held to be concluded in Clark v. Wolf 29 Iowa, 197. And see Tredway v. I. & P. B. R. Co., 39 Id., 665.

Affirmed.

Seevers, J., having been of counsel in the original action, took no part in the determination of this cause.  