111 Ind. 240 | Ind. | 1887
Vajen recovered a judgment against the jcity of Indianapolis in the court below for the amount of taxes alleged to have been erroneously assessed against and -collected from him, by the city, through its officers, on account of certain shares of stock in a banking association, organized under the laws of the United States.
The facts material to be stated, as specially found by the court, are, briefly, as follows: On the 1st day of April, 1880, Yajen was the owner of 336 shares of the stock of the Citizens National Bank of Indiauapolis, which stock was of the face value of $100 per share. He was at the same time indebted to an amount largely in excess of the value of his stock. In assessing national bank stock, it was the uniform babit of the city assessor to refuse permission to the plaintiff, and all other owners of national bank stock, to deduct the amount of their indebtedness from the value of their shares. Substantially, the only credits due the plaintiff at that time from which his indebtedness could have been deducted were his bank stock. The cashier of the bank made out duplicate statements, showing the number of shares comprising the capital stock of the bank and the residence of each stockholder, and the number of shares owned by each, according to the provisions of section 64, vol. 1, R. S. 1876, 89 (section
Similar proceedings, substantially, were had with reference-to the assessment of 1881, the amount assessed for that year being $273.37. The taxes for 1881 were paid after the duplicate was delivered to the city treasurer, before any demand by the officer, the plaintiff demanding from the treasurer a deduction on account of his indebtedness, which demand was-refused. In each case proper demand was made from the city by petition praying for the refunding of the taxes.
Upon the foregoing facts the court stated as its conclusions-of law, that the payments were voluntarily made, but that, under the ruling in City of Indianapolis v. McAvoy, 86 Ind. 587, the plaintiff below was, nevertheless, entitled to recover from the city the several amounts thus paid.
The plaintiff below excepted to the first conclusion of law
Error and cross error are assigned by the parties respectively. There is no controversy but that, under the ruling in Wasson v. First Nat’l Bank, etc., 107 Ind. 206, the plaintiff was entitled to deduct his bona fide indebtedness from the value of his bank stock, if proper steps to that end had been taken before payment of the tax.
The questions discussed are, were the payments to the city treasurer, under the circumstances as disclosed, voluntary? and was the plaintiff entitled to recover the amounts paid, in any event, as the facts appear, whether the payments were voluntary or involuntary ?
On behalf of the city, it is contended that the plaintiff had the right, and that it was his duty, to make out and return to the assessor under oath a list of his personal property, exhibiting on such list the amount of his credits, and showing the amount of his indebtedness, which he claimed the right to deduct. Having failed so to make- and return his list, the argument is, that the demand made upon the assessor and treasurer to be allowed to make the-deduction goes for nothing. This argument is predicated upon sections 6330 to 6334, R. S. 1881, inclusive. These sections provide for the listing and return of personal property by the owner for purposes of taxation. Provision is made for a statement by the lister of the credits due and owing him, and also that he shall be entitled to deduct from the gross amount of his credits the amount of all bona fide debts owing by him. The latter section provides that the assessor shall require that all deductions claimed shall be verified by the' oath of the person claiming the deduction, and that the oath shall form part of the statement of the person listed. Whatever force there might be in the position contended for, under other circumstances, it is entitled to no consideration as applied to the facts in the case before us. The manner of listing and assessing bank and other corporate stocks is peculiar, as compared with the listing of other personal property. In respect
The .right of owners of national bank stock to deduct from .its value the amount of their bona fide indebtedness results •rather from the construction which the Supreme Court of the United States has given the law under which national banking associations are organized, and the revenue laws of the ¡States as applied to such associations, than from any specific provision to that effect in the revenue law of this State. While we may assume that the Legislature of the State, acting in subordination to the law of Congress, contemplated that such deductions might be made, we are compelled to
-The special findings show that the demand was duly made of the assessor, and that the latter refused to make any deduction, not because the claim was not properly made by the-plaintiff on his assessment list, nor because of his failure to-, comply with any requirement of the a ssessor, but because the latter denied his right, under the law, to be allowed any deduction of indebtedness from the value of his stock. The-facts found make it very clear that whatever the plaintiff might have done by way of making statements, or in whatever form he might have presented his claim for deductions, it would, in any event, have been unavailing. According to-the rule, where the tender of performance is a prerequisite to the establishment óf a right against another, the offer to perform becomes unnecessary when the conduct of the-other party is such as to make it- reasonably certain beforehand that the offer will be refused. Hills v. Exchange Bank,
Tbe city assessor having refused to allow deductions, upon notice and demand, on the ground that no such deductions would be allowed in any case, because the law did not authorize them to be made, the city will not now be allowed to shift its position, and put its defence on the ground that the demand was not made in proper form.
The court having first reached the conclusion that, upon the facts found, the taxes were voluntarily paid, and having as its second conclusion stated that the city was, nevertheless, liable under the ruling in City of Indianapolis v. McAvoy, supra, it becomes proper first to examine the propriety of the conclusion last stated. If it be true that, whether the payment was voluntary or involuntary, the city is in either event liable to refund, it is, obviously, immaterial and unnecessary to consider the propriety of the first conclusion, which is called in question by the appellee’s cross error.
It is a well established doctrine of the common law that a party who, without fraud or imposition, pays an illegal demand, having at the time knowledge of all the facts which render the demand illegal, unless payment be made upon some immediate or urgent necessity, or to release his person or property from detention, or to prevent the immediate seizure of his person or property, such payment will be deemed to have been voluntarily made. To a party who thus pays an illegal demand the common law affords no right of recovery. Jenks v. Lima Tp., 17 Ind. 326; Lima Tp. v. Jenks, 20 Ind. 301; Town of Ligonier v. Ackerman, 46 Ind. 552 (15 Am. R. 323); Board, etc., v. Armstrong, 91 Ind. 528; Board, etc., v. Ruckman, 57 Ind. 96; Lamborn v. County Com’rs, 97 U. S. 181; Railroad Co. v. Commissioners, 98 U. S. 541; Union Ins. Co. v. City of Allegheny, 101 Pa. St. 250.
It should be observed, however, that the rule of the common law does not control in cases where a positive statute
Section 3157, R. S. 1881, being a part of the general law for the incorporation and government of cities, provides, among other things, that the common council may at any time order the amount of taxes erroneously assessed against and collected from any taxpayer to be refunded to him. In respect to the refunding of taxes, this provision has been held mandatory. City of Indianapolis v. McAvoy, supra.
As has already been seen, the taxes against the appellee’s bank stock were erroneously assessed, in that the assessor refused, after proper notice and demand, to allow any deduction from the value of the stock on account of the bona fide indebtedness of the owner. It,was the assessor’s duty to assess and return the bank stock, from the duplicate schedule furnished him, according to the provisions of the statute, and
It appears from the special finding, that the appellee notified the assessor on each occasion, when he returned his list, that his indebtedness was largely in excess of his other-credits, and demanded that it should be deducted from the value of his bank shares. The notice and demand were disregarded, on the ground that the law did not allow such deductions to be made, and not because of any informality in giving notice. The appellee was accordingly assessed for the full value of his stock without any deduction. This was an erroneous assessment. Taxes were paid to the city collector which were not justly due to the city, and the ease, therefore, comes within the very terms of the statute which requires taxes so assessed and eollecited to be refunded. The city was not exonerated from the duty of refunding because the appellee did not appear before the board of equalization and there attempt to have the erroneous assessment corrected. The taxes were erroneously assessed. An erroneous assessment and collection are the conditions which
The judgment is affirmed, with costs.