GLENDALE UNION HIGH SCHOOL DISTRICT, a Municipal Corporation, C. W. PETERSON, JOHN A. FOOTE and GEORGE FRYE, Supervisors of Maricopa County, Arizona, E. D. RING, Superintendent of Schools, Maricopa County, Arizona, and ED OGLESBY, Treasurer of Maricopa County, Arizona, Appellants,
PEORIA SCHOOL DISTRICT No. 11, a Municipal Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed.
Mr. Richard F. Harless, County Attorney, and Mr. Leslic C. Hardy, Assistant County Attorney, for Appellants.
Mr. Stephen B. Rayburn and Mr. T. E. Scarborough, for Appellee.
[55 Ariz. 152] LOCKWOOD, J.
Peoria School District No. 11, a municipal corporation, hereinafter called plaintiff, brought suit against Glendale Union High School District, a municipal corporation, C. W. Peterson, John A. Foote and George Frye, as supervisors, E. D. Ring, as superintendent of schools, and Ed Oglesby, as trea-surer, [55 Ariz. 153] all of Maricopa county, hereinafter called defendants, to recover certain moneys which it was alleged were the property of plaintiff. The matter was submitted to the court upon an agreed stipulation of fact, which showed in substance as follows:
During the year 1912, the Glendale Union High School District, of which the present Peoria School District No. 11 was then a part, voted a bond issue in the sum of $30,000. In 1920 the Peoria district ceased to be a portion of the Glendale district, but because the bonded indebtedness had already been incurred, necessarily continued paying its portion of the taxes required to pay the bonds until they were fully satisfied and retired, which was completed prior to September, 1932. In the month last mentioned the board of supervisions of Maricopa county, attempting to act under the provisions of section 1022, Revised Code of 1928, levied a tax on all the property in the Peoria district, for the purpose of making payments on the bonds, notwithstanding they had already been fully paid and retired, and in September, 1933, it again levied a tax for the same purpose. This tax, to the amount of $3,648.12, was collected without any objection or protest on the part of any of the taxpayers in said Peoria School District No. 11, and credited under the provisions of section 1022, supra, to the building fund of the Glendale Union High School District. The fact that the
levy of these taxes was not authorized by law because the bonds for the payment of which they were levied had already been fully paid and retired, was not known either to the board of supervisors of Maricopa county or the plaintiff until some time during the month of February, 1934. Thereafter, and prior to the commencement of this action, plaintiff made a claim for the payment into its general fund of the money so illegally levied and collected, and interest [55 Ariz. 154] thereon, but the payment was refused, and plaintiff brought this suit.
Various motions and demurrers were filed by defendants, which were overruled by the court, and judgment was rendered in favor of plaintiff against the Glendale district for the amount prayed for, without interest, and impressing it as a trust fund in the keeping of the treasurer of Maricopa county, for the general fund of Peoria School District No. 11.
The real questions before us are, Who is entitled as a matter of law to the money in question, and how can it be recovered by the rightful owner? Sec. 1022, supra, upon the authority of which the money was collected, reads in part as follows:
"Levy of tax to pay bonds and interest. The board of supervisors, at the time of making the levy of taxes for county purposes, must levy a tax for that year upon the taxable property in such district, for the interest and redemption of school bonds,... All money, when collected, shall be paid into the county treasury to the credit of the building fund of such district, and must be used only for the payment of principal and interest on said bonds...." (Italics ours.)
It will be seen by this that the only purpose for which the tax in question was authorized to be levied and for which alone, by the express terms of the section, it could be used had ceased to exist before it was levied and collected. If the taxpayers had refused payment, it could not have been collected, or, if they had paid under protest, they would have the right to recover the money. Sec. 3136, Rev. Code 1928.
This court has held, however, in the cases of Gibson Abstract Co. v. Cochise County, 12 Ariz. 158, 100 P. 453, and Arizona Eastern R. Co. v. Graham County, 20 Ariz. 257, 179 P. 959, that when a taxpayer pays an illegal tax, without any objection, no recovery may be had, and this is in line with the overwhelming [55 Ariz. 155] weight of authority in every state in the union. 61 C.J. 985, note 21, and cases cited. But there is no suggestion that any protest or objection to the payment was made by anyone.
Though it is true that morally this money belongs to the taxpayers who paid it, there is no legal manner in which they may now recover it. It does not belong to the Glendale district, for it was not levied for the general purposes of that district, but for a specific purpose and that purpose ceased to exist before the levy was made. People v. Board of Supervisors,136 N.Y. 281, 32 N.E. 854. Nor, indeed, ...