55 Ind. App. 533 | Ind. Ct. App. | 1913
This is an action brought by appellant in the court below to recover from the appellee, taxes and penalty which it had paid under protest on a railroad aid subsidy. The complaint is in two paragraphs, a demurrer to each of which was sustained.
The appellant stood on its complaint and appeals, and by proper assignment of error in this court presents the question of the ruling of the trial court on the demurrer to each paragraph of the complaint.
The second paragraph differs from the first in that it seeks to recover only the penalty paid by appellant and the averments on the subject of the demand are correspondingly
Section 9577 Burns 1908, Acts 1899 p. 117, makes it the duty of the county treasurer to pay over any unexpended balance in his hands arising from appropriations for railroad and other purposes named therein to the township trustee to be placed in the general funds of the township. So it seems that the authorities have recognized and that the statute now contemplates, that there may be a levy of taxes in cases of the kind here involved which may necessarily result in an excess fund. "We do not mean to say that if an auditor, by an excessive per centum, attempted to levy and collect a tax clearly beyond the amount voted for as expressed in the order of levy made by the board of
Appellant has not cited any statute upon which he predicates his right to recover, but cites authorities which recognize §5813 R. S. 1881, §6088 Burns 1908, as being applicable to such cases. The cases relied on are so different in their facts that they can have no influence in the ease at bar. The case at bar is against the township. The complaint shows no demand of, or application to the board of
Judgment affirmed.
Note.—Reported in 102 N. E. 865. As to recovery by taxpayer of taxes paid, see 22 Am. Rep. 519; 45 Am. Dec. 164; 94 Am St. 425. As to the necessity and sufficiency of grounds in notice of protest required as condition of recovering back payment of an unlawful tax, see 36 L. R. A. (N. S.) 476. On the right to resort to court to recover taxes paid on erroneous or excessive assessments without previous resort to statutory remedies, see 16 L. R. A. (N. S.) 675. As to the recovery of an illegal tax paid “under protest”, see 8 Ann. Cas. 669; 10 Ann. Cas. 1050. See, also, under (1) 37 Cyc. 1178; (2, 4) 37 Cyc. 1188; (3) 37 Cyc. 763; (5) 37 Cyc. 1542; (6) 37 Cyc. 1174.