182 Ind. 17 | Ind. | 1914
Lead Opinion
This is an appeal from a judgment rendered against appellant in favor of appellee, upon a contract for searching for, discovering and reporting for extension upon its tax duplicate, alleged omitted taxes upon a percentage basis.
The errors assigned arise upon exceptions to the conclusions of law stated, upon the facts found, and in overruling the motion for a new trial. The findings of fact are in their material'parts as follows: One Morrison was, from the year 1880, to the time of his death, in August, 1893, a resident of the city of Richmond, county of Wayne. From January 1, 1884, to August 12,1893, the date of his death, Morrison was the owner of 1,660 shares of the capital stock of the MorrisonPlummer Drug Company, a private corporation of the state of Illinois, and during all of that time was doing business in Chicago, Illinois. Said shares of stock were of the par value of $166,000. In each of said years, from 1884 to 1893 inclusive, said Morrison was, as such resident of the city of Richmond, assessed for taxation, and in each of said years signed and swore to an assessment list in the form prescribed by the statutes of Indiana; at no time during his life did said Morrisoii give any statement of his ownership of said stock in
“To his Honor and Members of the Council: Gentlemen : I propose to discover omitted taxables such as monies, notes, bonds, stocks, etc., located in this city and other counties that are taxable in this county, and report my discoveries to the clerk of this city for assessment and collection of the taxes thereon for a sum equal to twenty per cent of the taxes collected, no money to be paid to ine until the taxes so discovered above are paid into the city treasury. Respectfully yours, Wm. G. Young.”
followed by a resolution of the council that the following contract in form be approved.
“This agreement, made and entered into by and between the council of the city of Richmond, in Wayne County, and State of Indiana, and William G. Young, Witnesseth: That by this contract said William G. Young is employed by this council to make search for, and discover property that has been secreted and omitted from the tax duplicate of said city. Said discoveries of secreted and omitted property shall be by said William G. Young reported to the clerk of said city, and by him entered upon the tax duplicate in the hands of the city treasurer and at the same time said treasurer shall be charged with the taxes so entered upon the duplicate. For the services rendered by the said Young under this contract it is agreed that he, the said Young, shall receive a sum equal to twenty per cent of the taxes collected by reason of said discoveries and actually paid into the treasury. Payment to be made upon the warrant properly issued upon the showing by the said treasurer that he has collected such taxes by reason of the discovery aforesaid and by virtue of this contract. But in no case shall percentage be deemed due or owing until the taxes have actually been paid into the city treasury. This contract to continue and be in force for a period of one year from date. Dated at Richmond, this 6th day of April 1896.”
On June 2, 1896, Young assigned to the plaintiff, all his right, title and interest in said written contract, which assignment was endorsed on the margin of the record of said
“For value received, I hereby assign and transfer all my right, title and interest in and to the within contract to Fremont Clifford, this 2nd day of June, 1896.
(Signed) ¥m. O. Young.
Attest:
Jos. H. Winder,
City Clerk.”
On April 15, 1897, the common council extended the contract with appellee for the period of one year from April 6, 1897. On June 12, 1897, plaintiff filed with the city clerk of appellant, and in the city clerk’s office of the appellant, a written report or information, notifying said clerk and said city of Richmond in substance, that the said Morrison, a former resident of the city of Richmond, Wayne County, Indiana, and his estate after his death, had owned and held during the years from 1884 to 1895, both inclusive, $166,000 par value of the capital stock of the Morrison-Plummer Drug Company, a private corporation of the city of Chicago, state of Illinois; that said capital stock was subject to taxation by said city of Richmond for each and all of said years, and that said capital stock had not been assessed for taxation, and had been wholly omitted from the tax duplicates of the city for each and all of said years. On November 15, 1897, the common council passed a resolution compromising and settling the tax claim at the sum of $2,000 for all taxes against the Morrison property, pursuant to which action the city clerk extended taxes on the tax duplicate of the city apportioned to the various years from 1885 to 1895, both inclusive, in the aggregate sum of $2,000, which the executor in 1897 paid. In the year 1906, the clerk of said city ignored said pretended compromise settlement, and entered an additional assessment for taxation of said capital stock upon the tax duplicate of 1906, of said city, for each of said years from 1885 to 1895, both inclusive, aggregating $839,796, and ex
The same contract here involved, was involved in City of Richmond v. Dickinson (1900), 155 Ind. 345, 58 N. E. 260, but it is the first contention of appellant that the court’s attention was not called in that ease to the fact that by the act of 1891, then under consideration, provision was, for the first time, made for a county assessor, whose duty it was to search for omitted property, and through his efforts, omitted property first gets on the tax duplicate of the county, and then on the city duplicate, and that the same fact was overlooked so far as county assessors were concerned in Fleener v. Litsey (1903), 30 Ind. App. 399, 66 N. E. 82, and that the sole authority as to searching the records for omitted property is the county assessor’s, and that no other person can be paid from the public funds for searching for omitted property. The second proposition is, that as.the list for taxation as furnished by county auditors to cities, is the sole authority and basis under §254, Acts 1891 p. 199, §10429 Burns 1914, for taxation by cities, and no provision is made by statute for cities to authorize employment independently to search for omitted property, the authority does not exist to
Conceding without determining whether the attention of the court was directed in the case of City of Richmond v. Dickinson, supra, to the fact that the selection of county assessors whose duty it is to search for omitted taxable property by the act of 1891, when the office of city assessor was abolished, it must be apparent from the opinion that it was determined, that county auditors, county treasurers, city clerks or city treasurers were not required to search for omitted property, and we have since held that that duty is imposed on county assessors, at least to the extent that the fact of omission is disclosed by the public records of his county (State, ex rel. v. Goldthait [1909], 172 Ind. 210, 87 N. E. 133, 19 Ann. Cas. 737) so that the duties of city clerks and city treasurers are not enlarged beyond the corresponding duties of the county auditor and county treasurer, as determined by that ease.
The second proposition of appellant has much plausibility and reason to support it, in the fact that the taxing law of 1891 (Acts 1891 p. 199) aimed at a uniform system of assessments, as applied to counties and cities, coupled with the abolition of the offices of city assess- or and city boards of equalization, indicating the vesting of the subjects of assessments and equalization, in the county' officers. Suppose, however, that the proper county authority fails or refuses to act, or search for and report omitted property, must the city in order to obtain a proper taxation of all the taxable property act through the county assessor, or may it employ agents for that purpose ? It is evident that to attempt to mandate the assessor would be unavailing, because the particular duty would not be sufficiently certain in
On the motion for a new trial, it appears by the evidence, that the fact that the particular stock in question was held by Mr. Morrison, and had not been taxed, was well known to the city officers before the contract was made, and had been the subject of frequent consideration by them, but they labored under the erroneous belief that it was not subject to taxation. It further appears that about the time Young obtained the contract with appellant, one Lacey also obtained a similar contract with the board of commissioners of Wayne County, and the latter and appellee worked together in the matter. They determined between themselves, that appellee should first file the information as to the omitted property with the city clerk of appellant, which he did. The city clerk refused to put the property on the tax duplicate, and in order to get the property on the county duplicate, they then determined that Lacey should file a like statement or information with the county auditor, and he did
Appellant concedes that §4 of the act of 1891 (Acts 1891 p. 199), gave rise to ambiguity as to whether such stock .is taxable in Indiana. It was not the duty of county auditors or county treasurers, and of city clerks or city treasurers to search for omitted property, but it was their duty when informed, to investigate and place it upon the duplicate, and
If the city in its business discretion had desired to await action by the county authorities in this matter, it might have done so, but it did not. That it could have procured the same result by mandamus, and whether it was good or bad business judgment is likewise immaterial here. The answer to it all is, that it pursued a course it was authorized to pursue.
It'is next urged that the contract did not include the Morrison stock, and that it was expressly excluded in the agreement with Young, the contention being on the fact that several couneilmen testified to that effect, as to conversations held with Young before the contract was executed, and the further claim that appellee was a silent partner with Young at the time Appellant had the benefit of the evidence on that point, whether correctly or incorrectly we do not decide, but the evidence fails to show any connection of appellee with the contract prior to the time it was made, and Young was dead at the time of the trial. It was assigned for value to appellee without any notice other than its terms, and the question must rest there.
We perceive no error in the record, and the judgment is affirmed.
Morris, J., did not participate in the decision in this cause.
Rehearing
The learned counsel for appellant on petition for a rehearing insist very earnestly, that the court in its original opinion put too broad a construction on the contract in question, as to its subject-matter, for the reason claimed, that as the existence of the property was well known to the council and taxing officers, it could not have been intended to embrace this property, as secreted and omitted, or to search for and discover it as such, because it was not secreted, and no search was necessary. It will be noted that the original proposition was to discover omitted property, and place it on the tax duplicate. The council in its acceptance changed the phraseology of the proposition as made, as one to “search for and discover property that has been secreted and omitted from the tax duplicate”, but this language does not change the contract, as one for the discovery of omitted property, whether the omission arose from a misconception of the law, or from secretion. Appellant’s contention is plausible that under the circumstances disclosed it could only embrace property that should be discovered, which had been both secreted and omitted, but taking the whole scope, and purpose of the agreement into consideration, the purpose was to have all the taxable property of the city taxed. It could not be secreted property, without being omitted; but it could be, and was omitted property, without being secreted; but the object was to have all omitted property taxed, and if through an erroneous view of the law it had been omitted, it was omitted, just as much as if it had been secreted, and the search and discovery required and undertaken, embraced discovery and search as matters of law, as well as of fact; it therefore embraced secreted property omitted for that reason, and property not secreted in fact, but omitted by erroneous construction of the law.
The erroneous construction insisted on by appellant, that it could only apply to this search for, and discovery of
Note. — Reported in 103 N. E. 789; 105 N. E. 385. See, also, under (1, 2) 37 Cyc. 982; (3, 5) 28 Cyc. 679; (4) 17 Cyc. 753.