ON PETITION FOR A REHEARING.
Buskirk, J.The appellees have asked for a rehearing on two grounds.
In the first place, it is claimed that we erred in holding that where money had been collected by a county treasurer ■ on an illegal assessment, and he had paid the same into the state treasury, the same could not be taken therefrom by a decree of a court, but that it could only be paid out in pursuance of appropriations made by law; and in support of this position we have been referred to sections 120 and 121 of the assessment law, 1 G. & H. 101, which read as follows:
“Sec. 120. Whenever it shall appear to the board doing county business in any of the counties of this State, that by reason of erroneous charges on the tax duplicate, or from any other cause, the treasurer of such county has paid and' accounted to said board for more money than was justly due from him on account of county revenue, said board doing county business shall direct the auditor to credit said treasurer with the sum or sums thus improperly paid, and order the same to be refunded from the county treasury.”
“Sec. 121. Whenever similar improper or erroneous payments have been made by any county treasurer to the state treasury, the board doing county business shall direct the auditor to certify said improper or erroneous payments to the auditor of state, under his seal of office, who shall audit and allow the same as a claim against the treasury, and- the treasurer shall pay the same out of any moneys not otherwise appropriated.”
We think that it is quite clear, that the above sections have *188no application to the case under consideration. The manifest purpose of the legislature was to provide a cheap and speedy remedy, without resort to a regular suit in the courts, for such erroneous charges and mistakes in calculations as might, and frequently do, occur, in making out duplicates and collecting taxes. ■ It was intended to meet and provide for individual and occasional instances of erroneous charges and miscalculations; that the sections above quoted were' not intended to apply to and govern a case .like the one under consideration, where an illegal tax had been assessed against the almost entire body of tax-payers in • a county. The remedy for persons who are thus illegally assessed is to enjoin the collection of such illegal taxes; and if they fail to do so, and voluntarily pay the same, their only remedy is an appeal to the justice of the law making power.
But the remedy provided for obtaining money that has been improperly paid into the state treasury is a special one, and must be strictly pursued. It does not contemplate a resort to the courts. The matter must be presented to the board doing county business, which shall direct the county auditor to certify such improper or erroneous payment to the auditor of state, under his seal of office, who shall audit and allow the same as a claim against the treasury, and the treasurer shall pay the same out of any moneys not otherwise appropriated. There is a valid appropriation as provided by the constitution, but the remedy provided must be strictly pursued, or the auditor of state would have no power to audit such claim. No power is conferred upon the courts to take jurisdiction, or render any decree in the premises. If the auditor of state should refuse to audit such claim he might be compelled to do so by mandate.
In the second place, it, is claimed that we erred in ordering the suit to be dismissed, for ’the reason that it was shown that there were two hundred and thirty-three dollars of delinquent taxes collected on such illegal assessment and valuation, still in the hands of the county treasurer. The decision on the original hearing only extended to and *189embraced such taxes as had been actually paid into the state treasury. '
B. W, Hanna, Attorney General, and C. Baker, for appellant. y. Brownlee and H. Brownlee, for appellees.We do not deem it necessary to modify our judgment, as the auditor of state will feel bound by our decision to allow the treasurer of Grant county credit for such delinquent taxes.
The petition is overruled, and the clerk is directed to certify the opinion to the court below.