dissenting. — I. The statement of the ’ pleadings made in the opinion of the majority of the court recites an important averment of the petition, namely: That the money collected as taxes from plaintiffs, which they seek to recover, is wholly unpaid.
The demurrer resists plaintiffs’ right to recover in this action, as it will be discovered upon the consideration of the whole pleadings, upon these grounds:
1. The money was paid to and received by the treasurer *24of defendant in a private capacity as ' agent of plaintiff, not officially as treasurer of the county, and the money was not paid into the treasury of the county nor used and appropriated as public funds.
2. The action is barred by the statute of limitations.
II. It has been held by a majority of this court, in more than one decision, that the statute authorizing the levy of taxes to aid in the construction of railroads is constitutional, for the reason that the building of railroads is a public purpose for which taxes may be levied. See Stewart v. Board of Supervisors, 30 Iowa, 9. This case has been frequently approved. See Renwick et al. v. Davenport & Northwestern R’y Co., 47 Iowa, 511.
If the statute provided for the levy of taxes for a private purpose it would, according the doctrine recognized by all courts, be in violation of the constitution. The taxes involved in this case were, according .to the settled rule of this court, levied for a public purpose. They were authorized by a vote of the people and when so authorized they were levied and collected as all other taxes. _ Their collection was made by the county treasurer, and when delinquent the payment was enforced by distress of goods or sale of lands, in the same manner as all other taxes levied by the .county. See chapter 102, Acts Thirteenth General Assembly.
The statute above cited, under' which the taxes were levied, gives no support to the positions assumed in the demurrer that 'the taxes were not paid to' the county treasurer in his official capacity, but were received by him as' the agent of the tax-payers, and the money was not, therefore, paid into the county treasury.
The statute authorizes the county treasurer to collect the taxes, which are levied by the county and placed upon the tax books. They are collected in the same manner as other taxes. It is impossible to suppose that the legislature intended the collection of this tax, levied for a public purpose, to be made’by a private person. The act. designates the person *25charged with the collection of the tax by his official title, and prescribes his duty in language of the same purport that it uses in prescribing his duties pertaining to other taxes. That the statute requires the taxes collected under its provisions to be paid into the county treasury is not left to inference. The proviso of the third section prescribes that if the táxes be not withdrawn from the county treasury within two years the treasurer shall repay the money to the tax-payer. Here is an express declaration that taxes under the statute are found in the county treasury. Of course they were deposited in the treasury by the treasurer.
We have, then, the case of taxes paid for a public purpose into the county treasury. They are held by the county in trust for the objects to which the law appropriates them. D. M. & M. R. Co. v. Lowry, 51 Iowa, 486. In this respect they do not differ from other taxes for special purposes, paid into the county treasury, as the school taxes, bridge taxes, taxes for the support of the insane, etc. The fact that these taxes are not appropriated to purposes connected with the county government does not authorize the conclusion that the county is not interested in the purposes for which they were collected. The county, as a branch of the government of the State, is charged by the law with the duty and responsibility . of collecting and disbursing these various taxes. They are collected for public purposes, and their disbursement within the county is a public benefit which is enjoyéd by the people of the county. The law charges the county with the duty of returning to the tax-payers the money collected for the construction of railroads, if it he not used for that purjtose. As the - money is in the treasury of the county, the tax-payer cannot seek payment elsewhere.
As we have seen, the taxes under the law are paid into the treasury of the county. The petition avers that the money still remains there. The law declares that if the taxes are not withdrawn from the county treasury within two years after collection, the money shall be repaid to the tax-payer. *26Who should be responsible for the return of the money? It is very plain that the county treasurer is not, for he holds the funds for the county. It is equally plain that the county is responsible, for the fund which the tax-payer seeks is found in its treasury. To my mind the question will not admit of further argument.
III. The action is not barred by the statute of limitations. The defendant became liable to repay the tax Dec. 12, 1873, at the expiration of two years from the date of the payment. The action was commenced October 10, 1878. The period of limitation is five years. Code, § 2529, ¶ A
Actions against public officers are barred within three years. § 2529, ¶ 3. This provision is not applicable to the case before us, which is not prosecuted against an officer, but against the county.
In my opinion the judgment of the District Court ought to be reversed.
Seevers, J\, concurs in the conclusions I have expressed in this dissenting opinion.