35 Ind. App. 20 | Ind. Ct. App. | 1905
The complaint is in two paragraphs. In the first it is alleged that the plaintiffs are the owners in-fee simple, and have been for the past ten years, of 860 acres of land (describing it) located in Indian Creek township, Lawrence county, Indiana; that in the year 1899 the assessor of said township returned said lands for taxation at a valuation, giving the tracts and the valuation affixed to each tract, making a total valuation of said lands as returned by the assessor of $5,900, including improvements; that the auditor of said county, in the. year 1899, illegally placed upon the duplicate of said county the valuation of $10,540; that said valuation in excess of said $5,900, as returned by the assessor, was wrongful and void, for" the folio-wing reasons: The auditor, county assessor, or some one without authority in that behalf, illegally, inequitably and irregularly changed upon the book of the assessor of said township the valuation of $5,900, as returned by said as
The amended second paragraph of complaint alleges that the plaintiffs are now, and for twenty years prior hereto were, joint owners, and in 1899 were and are now the sole owners of certain real estate (describing it), being the same real estate described in the first paragraph of complaint; that in the year 1899, at the time a pretended board of equalization met in the county of Lawrence, and long prior, there was situate upon a certain 160-acre tract of said land a stone-quarry known as the “Doyle quarry;” that the Doyle Quarry Company held from these plaintiffs a lease, under the terms of which it was entitled to remove from beneath the surface of said 160-acre tract held by it under said lease, to wit, about six acres, all oolitic limestone deposit it might see fit to quarry therefrom; that pending the existence of said lease, which was in force in 1899, and which lease is still in force, said Doyle Quarry Company was the absolute owner under said lease of all stone removed, or that it might remove, pending the existence of said lease, from said part of said 160-acre tract by it held under said lease; that said assessor in making said assessment made no assessment whatever valuing said lands exclusive of the Doyle mine or quarry, but valued all of said lands and assessed the same at the aforesaid valuation
Plaintiffs aver that the order so made is void, for the reason that the board had no power in gross thus to increase and raise the assessment as returned by the assessor of said township; that, while in fact they are the heirs of Moses Fell, deceased, in the year 1899 the heirs of Moses Fell, in Indian Creek township, held and owned no lands whatever, but that the title to. the lands aforesaid was in Maria L. Fell and Antoinette Fell, these plaintiffs, share and share alike; that, pursuant to the wrongful and unlawful increase in the valuation of their lands, the auditor of Lawrence county carried the same into the duplicate of 1899, and has since carried the same continuously where it now is; that in so doing there has been since 1899, and is now, upon said duplicate a valuation of $10,540 upon said real estate, when there should not be a valuation beyond the assessment as returned by the assessor of Indian Creek, township in 1899, to wit, $5,900, Said paragraph also pleads the
A demurrer for want of facts to each of said paragraphs was overruled, and defendant answered by general denial. Upon proper request, the court made a special finding of facts, stated conclusions of law, and rendered judgment thereon in favor of defendant. Plaintiffs excepted to the conclusions of law.
The error assigned is that the court erred in its conclusions of law.
The special findings show the lands; the assessment of taxes thereon as set out in the complaint; that they were assessed by the assessor in the name of Moses Pell’s heirs, the record of said assessment made in the assessor’s book, and ownership of said lands substantially as set out in the complaint; that on the 6th day of June, 1899, the auditor of said county gave notice that the board of review would meet at the auditor’s office on the 19th day of Juné; that said notice was published on the 6th, 9th and 16th days of .June, 1899, in the Bedford Mail, a newspaper of general circulation, printed and published in said county; that the record of the board of review was silent as to the publication of any such notice; that on the 19th day of June, 1899, the board met and organized; the assessor’s book aforesaid, with the assessments aforesaid, came before said board of review for action; the board during the time of their sessionvisited and inspected the lands hereinbefore described, for the purpose of ascertaining and learning such information as was necessary relating thereto. On the 12th day of July, 1899, the board, after considering the matter of the assessment aforesaid, agreed upon the changes in the assessment of the real estate as set out in the complaint, and, having determined upon said assessment and changes, the auditor, by direction of said board of review and as a part
The findings show that as the taxes became due on the lands aforesaid, the plaintiffs paid the same as alleged in the complaint, with the exception of the second instalment for the year 1902, and that they tendered to the defendant $90, the amount of said second instalment of tax at the current rate of the year 1902 for the amount of $5,900, as alleged in the complaint; that the suit herein was begun on the 4th day of September, 1903, after said $90 had been tendered to said treasurer; that for several years prior to 1899, and until this time, there was a quarry of limestone on a part of the aforesaid lands, exclusively operated at different times by George Doyle and others; that for the year 1899, and since that time, plaintiffs collected as rental for and on account of the said quarry the sum of $1,800 per annum; that during the years herein mentioned the aforesaid real estate was not assessed in any other way or manner, or for any other amount, than the assessment herein set out.
It is found that in the year 1899 Wesley Armstrong, as assessor, assessed the lands mentioned- in the complaint, and gave his return of assessment to John W. Hudson,
It is found that at no meeting of said board did the plaintiffs, or either of them, appear, either in person or by attorney, and that there was no- evidence that notice of any description was ever given plaintiffs, or either of them, of the intention of said board to change, correct, amend or increase the assessment as returned by the assessor of said township to the auditor of Lawrence county, or the amount of assessment as returned by said assessor through John W. Hudson to Moses F. Dunn, agent as aforesaid; that the record is silent as to the issuance of any notice to plaintiffs, or either of them, or as to any appearance, or service of any notice, or either of them, and is silent as to whether said plaintiffs, or either of them, were ever called or defaulted before making the order of July 12,1899 ; that all taxes on said Indian Creek township lands and personal property have been paid by plaintiffs up to the commencement of this suit, other than the amount of said deposit, and that there were and are no delinquent taxes; that no part of the taxes is for omitted property; that there is no proof as to who M. Fell or his heirs were in 1899, or are, and no reason given why the lands of the -plaintiffs should have been assessed under any order against M. Fell’s heirs.
The gravamen of the complaint is that the valuation of appellants’ real estate was inequitably and unjustly in.
Section 8642, supra, is as follows: “No general or specific tax authorized by the laws of this State, and which shall be assessed on any property in any township, city or town within this State by any officer authorized to make assessments or which if made by another person or may-be adopted by such officer as his act shall be held to be illegal or invalid for want of any matter of form in any proceeding not affecting the merits of the case, and which shall not prejudice the rights of the party assessed. And all taxes assessed upon any property in this State shall be presumed to be legally assessed until the contrary is affirmatively shown.”
In Reynolds v. Bowen (1894), 138 Ind. 434, it is said: “It was never intended that proceedings before the auditor, such as those objected to in this case, should be conducted with all the precision and formality of an action in court. * * The power to assess is a summary power; and, to
In Graham v. Russell, supra, the court said: “It was held in the latter case [referring to the case of Reynolds v. Bowen, supra], that the power to assess property is a summary one, and that in order to secure uniform and just taxation, which the law intends, and to protect the State’s revenue against a dishonest evasion of the law, and also to protect the honest taxpayer, it is necessary that the tax laws b.e liberally interpreted in aid of the taxing power.”
In Gallup v. Schmidt, supra, it is also stated that the evident purpose of the statute is to aid in the collection of the public revenue, and must be liberally construed.
The court well said in the case of Newton v. Roper (1898), 150 Ind. 630: “While notice is essential to the due process of law, it is not essential to the validity of every step in a proceeding, judicial or quasi judicial that special notice be given as each step is to be taken. The assessment and enforcement of taxes must be by methods necessarily summary, and without the detail of judicial tribunals. With reference to tire assessment of property for taxation, it has been held that there is due process of law when the law has prescribed the time, the place, and the tribunal when, where, and by which assessments are to be made.” See, also, Cleveland, etc., R. Co. v. Backus (1893), 133 Ind. 513, 18 L. R. A. 129, in which it is held that the state board of tax commissioners is not a judicial tribunal in the meaning of the Constitution. That the proceeding in the assessment of taxes is not judicial, and that the board of review is not a judicial tribune, nor a court of inferior jurisdiction, nor governed by the rules relating to judicial procedure, has been repeatedly held in this court.
In Crowder v. Riggs (1899), 153 Ind. 158, which was a case to restrain the authorities from placing upon the tax duplicate the property of appellant, for the reason that the notice served upon him was insufficient, the court said: “He can not obtain relief on the ground of the want or insufficiency of notice, or other informalities or irregularities. ' If the property is taxable, the want of notice or the insufficiency thereof, or any other irregularity or informality, does not entitle the owner thereof to an injunction.”
The special findings failing to show this fact essential to appellants’ recovery, the judgment is affirmed.