76 Ind. 369 | Ind. | 1881
Appellants sought an injunction restraining the collection of a tax levied for the benefit of a gravel road. They were defeated below, and ask a reversal upon the ground that their motion for a new trial was erroneously denied.
One of the causes alleged for an injunction is, that the assessors did not view all of the lands lying within one and one-half miles of the line of the proposed road. The statute in force when the tax was assessed provides that the assessors shall view all the lands within one and one-half miles of such road, and make a list of the same. 3 Ind. Stat., p. 538, sec. 3.
The statute does require a view of the lands lying within' the limits defined, and we are required to determine what is meant by the term “view,” as used in this statute. In the case of Wakefield v. The Boston, etc., R. R., 63 Me. 385, the court adopted the definition of the word “view” given
We think that our statute requires that the assessors shall make an examination of the lands, upon which i.t is proposed to lay the tax, from such points of observation as will enable them to accurately ascertain the location of said lands, and in what manner the proposed road will affect each separate tract of land. A minute inspection is not required, but some personal inspection, made from points affording a fair sight of the land and its surroundings, is required.
It has been often decided that a failure to list all the lands isubject to taxation avoids the assessment. The rule must be the same in cases where there is a failure to view all such lands within the prescribed limits. The two requirements are so closely blended that it is impossible to sever them without violating settled rules of statutory construction. The purpose of the Legislature in requiring a view is obvious, and a view of all the lands is quite as important, and fully as essential, to a just and equitable assessment, as the listing. The reasons which support the cases holding that all the lands must be listed afford support to the doctrine that all must be viewed.
The assessors reported under oath that they had viewed and listed all the lands lying within the prescribed limits of the line of the proposed highway, and the auditor placed the assessment upon the tax duplicate. The presumption is, that these public officers had done their duty, and the bur
It is insisted that a pai’cel of land was omitted from the 'list. It appears that a small parcel of land, used for school purposes, was not listed against the township, but was included in a larger tract of land listed in the name of another person. We are not willing to hold that such an error would vitiate the entire assessment. It might be cause of complaint on the part of the person against whom it was listed, and be good ground for relief upon appeal. If this were so, it would not entitle tax-payers to have the 'entire assessment declared void. Unless the proceedings were void, the remedy must bé by appeal, and not by injunction. Where there is an express right of appeal, an injunction will not lie, unless the proceeding assailed is utterly void. In cases where an ordinary legal remedy is provided, which will afford just and adequate relief, the extraordinary remedy of injunction can not be invoked. No tax-payer is affected by such an error as that under mention, except the one who is listed with too much land, for the burden of no other is increased. Such a mistake does not add to the burden upon any other person, or upon any other property.
The deed given in evidence shows a grant of the one-half of an acre of land to Franklin township, Johnson county, and the parol evidence shows that this was the school lot said to have been omitted from the assessment list. It may well be doubted whether the statute intends that lands held by townships for school purposes shall be assessed for the •construction of gravel roads. We, however, decide nothing upon this point.
The allegation of the complaint is, that “about one acre, lying in the west half of the west half of the south-east
Judgment affirmed.