186 Ind. 280 | Ind. | 1917
In this action appellant seeks reversal of judgment allowing a recovery by appellee upon a contract between appellee and the board of commissioners of Wabash county, which provided that appellee should be paid by said county thirty-five per cent, of taxes due the county on account of omitted taxable property discovered by appellee, and that such per cent, should be due when such taxes were paid into the county treasury.
The assignments of error are based upon certain general propositions, the determination of which will dispose of all the specific points made.
The filing of a claim is “all the statute requires to give the board jurisdiction.” Myers v. Gibson (1898), 152 Ind. 500, 53 N. E. 646. The opinion further states that “as the allowance was vacated by the appeal, and no longer existed, the claim, * * .* was pending in the court below for trial de novo,” citing State v. Brewer (1878), 64 Ind. 131; Wright v. Wilson (1884), 95 Ind. 408. The same effect follows where an independent 'suit is instituted, rather than an appeal taken;
The act of 1881 referred to did not repeal §6016, hereinbefore mentioned, but further limited the powers of the board under said §6016, and such powers as may have existed in the board independent of said section, in that it prevented the board from using an indispensable public necessity as a basis for contracting with others than county officials for the discovery of omitted property. Vandercook v. Williams (1885), 106 Ind. 345, 1 N. E. 619, 8 N. E. 113. The subject matter of §6416, supra, was considered by the legislatures of 1891 and 1897, and amendatory, or re-enacting, laws were then adopted substantially the same as §6416, supra, ex
This view is supported by the opinion of this court, written by Judge Baker, in City of Richmond v. Dickinson (1900), 155 Ind. 345, 58 N. E. 260, which, though it actually deals only with the powers of city officers to contract, quotes the general laws regarding taxation of omitted county property, and points out the application thereof to the taxation of omitted city property, and holds that because said prohibition against contracting with others for such services was omitted from the later acts above mentioned, the counties and cities of the State may, so far as said prohibition is concerned, contract with others to discover omitted property, unless the county officials are obliged to search for omitted property as a part of the performance of their official ■ duties. See, also, for inferential support of this view, McCaslin v. City of Greencastle (1913), 56 Ind. App. 54, 104 N. E. 871. We must, therefore, determine the obligation of county officials in this regard.
It is held that county assessors are not required to search for omitted property beyond the records of the county. State, ex rel. v. Goldthait (1908), 172 Ind. 210, 87 N. E. 133, 19 Ann. Cas. 737. City of Richmond v. Clifford (1914), 182 Ind. 17, 103 N. E. 789, 105 N. E. 385. It will be noted that the contract in this instance excluded any compensation to Workman on account of any omitted property carried to the county records as a result of the discovery thereof by any county
It is asserted by appellant that, as it does not appear that an appropriation of county, funds existed for the purpose of paying for the services covered by said contract, the contract is void., .
Appellee argues that no appropriation was necessary for the making of a contract of this kind, because the act of 1905, Acts 1905 p. 15, §10271 Burns 1914, provided that all expense of discovery and collection of taxes should be deducted from the gross amount of such collections, and the balance distributed to the respective funds entitled thereto. It has been held that this section was not enacted for the benefit of parties so employed to discover omitted property, but was enacted to protect the county in event of refusal by the State, townships, and others entitled to distribution, to allow a credit in favor of the county for its reimbursement where it had incurred expense incident to the collection of such taxes; and it is held, therefore, that an appropriation is necessary to support such a contract, notwithstanding, the section under consideration. State, ex rel. v. Goldthait, supra, 226.
It is claimed by appellee that the lack of an appropriation was rendered immaterial by the curative act passed in 1909 (Acts 1909 p. 20).
This action resulted in a judgment against appellee for such recovery. Thereafter, the legislature passed the curative act above mentioned; and it is argued that the rights of the parties hereto under said contract were fixed and vested by the judgment, and that the legislature could not cure a contract so adjudged to be void for want of an -appropriation, and thus destroy a judgment of a co-ordinate, but independent, branch of the state government.
The record in this case is somewhat confused as to what is shown in reference to said judgment. Further consideration of the same justifies a holding that there was no issue made in this case as to whether matters here involved had, prior to said curative act, supra, been so far adjudicated that said legislative action could not
So far as appears by the record in this cause, the-act of the legislature did not infringe upon the independent powers of the court rendering such judgment, or impair the force of the judgment, and said curative act, so far as that is concerned, is effective.
The demurrers and motions to strike out, the rulings on which are herein assigned as error, were based upon propositions above decided, and though there might exist some doubt in the court’s niind, on a strict question of pleading, as to whether said rulings were correct, there was no material harm in any of said rulings, in view of the fact that the cause was fully and fairly tried and decided upon its merits.
Having considered the objections to the instructions given by the court of its own motion, to those asked by appellee and given, and to those asked by appellant and refused; and having considered the causes assigned in
Note. — Reported in 116 N. E. 83. Power of a county to make a contract to search for property omitted from taxation, 4 Ann. Cas. 140; 11 Ann. Cas. 487; 4 L. R. A. (N. S.) 839; 38 L. R. A. (N. S.) 261.