49 Ind. 64 | Ind. | 1874
Lead Opinion
This action, which was brought by the appellant against the appellee, was instituted for the purpose of enjoining the collection of certain taxes which were charged against the appellant on the tax duplicate in Bartholomew county, and which were about to be collected by the appellee,. as treasurer of the county.
The complaint is as follows: “ The plaintiff, for substituted»
The complaint was verified by the oath of an agent of the company, and a temporary injunction was granted.
The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendant excepted.
The defendant then answered, in three paragraphs, as follows :
“ 1. The defendant for answer herein says that said-pretended state board of equalization, mentioned in the complaint, was not a legal board of equalization for state purposes, and was not composed of delegates chosen by legal district boards of equalization, in this, to wit, that neither of the district boards of equalization was composed of the auditors of the several counties of said districts, as prescribed by law; that the auditors of the fourth congressional district did not meet at the county seat of Decatur county, as required by law, to choose a delegate to such state board, nor did the auditors of the fifth, sixth, seventh, eighth, ninth, and eleventh congressional districts meet at the places required by law, and choose delegates to said state board of equalization; and they say, if any legal delegates or members to said state board of equalization were present at said meeting, such legal members did not compose a majority of the members or delegates required by law, but a
“ 2. The defendant, for further answer herein, says that the. pretended board of equalization, mentioned in the complaint, met on Monday, the 5th day of July, 1869, and continued in . session until the 16th day of July, 1869, more than ten days altogether; and on said 16th day of July, 1869, being the eleventh day after said 5th day of July, 1869, and the twelfth day of their session, said board made the order of re-appraisement, whereby-per cent, was deducted from the valuation of said railroad company in Bartholomew county, Indiana, it being the same order and résolution mentioned in the complaint; and the said resolution and reduction was without authority of law, and is void ■ that the said taxes charged to the plaintiff are upon the assessment as the same was made by the proper officers duly authorized to originally assess the same, and as approved by the county and congressional boards-of equalization, and upon none other, and said taxes now remaining on the tax duplicate are said residue of taxes, and the penalty imposed by law for non-payment thereof; wherefore the defendant demands judgment.
“ 3. The defendant, for further answer herein, says that nnder and by virtue of a law passed by the legislature of the
The plaintiff demurred to the several paragraphs of the answer. The demurrers were overruled, and the plaintiff excepted.
The plaintiff replied as follows: “ That after the passage
“ 1. Victor Bisch, of Vanderburgh county, for the first con- - grcssional district.
“2. James C. O’Brien, of Martin county, for the second congressional district.
“ 3. Eiohard D. Slater, Jr., of Dearborn county, for the third congressional district.
“ 4. C. B. Bently, of Franklin county, for the fourth con- • gressional district.
“ 5. Eugene Culley, of Brown county, for the fifth congressional district.
“ 6. Charles D. Woolfork, of Lawrence county, for the sixth congressional district.
“ 7. A. J. Castater, of Tippecanoe county, for the seventh congressional district.
“ 8. William Neal, of Grant county, for the eighth congressional district.
“ 9. Henry J. Budisell, of Allen county, for the ninth congressional district.
“ 10. Francis McCartney, of Steuben county, for the tenth congressional district.
“ 11. A. C. Thompson, of Marshall county, for the eleventh congressional district.
“ Which report was concurred in by said board; and said «delegates were duly sworn and qualified as such, and thereafter, on the day mentioned in said complaint, reduced said-, "valuation of plaintiff’s road, as set forth in said complaint. A~
The defendant demurred to the reply, for the reason that it did not state facts sufficient to constitute a reply, and the demurrer was sustained.
The plaintiff excepted to the ruling, and, refusing further to reply, final judgment was rendered for the defendant.
Errors are assigned by the appellant as follows:
1. Overruling the demurrer to the first paragraph of the answer.
2. Overruling the demurrer to the second paragraph of the answer.
3. Overruling the demurrer to the third paragraph of the answer.
4. Sustaining the demurrer to the reply.
5. Finding against the appellant for want of a reply.
6. Dissolving the temporary injunction.
The appellee has pleaded a denial of the errors assigned by the appellant, and has assigned as a cross error the overruling of his demurrer to the complaint.
It appears to be the desire of counsel in this case, that we shall decide the questions argued in the briefs, whether they are presented by the record or not. It is conceded by counsel for the appellant that the case was commenced under a misapprehension as to the state of the law bearing upon it, they supposing that the provisions of the general law touching the assessment of real estate for taxation governed the case, when, in fact, it was governed by the act of 1865 entitled “ an act to secure a just valuation and taxation of all railroad property within this State, to legalize the valuation, assessment, adjustment and payment of taxes for such property, made subsequent to the year 1859.” 3 Ind. Stat. 418. As the two laws are essentially different, it is not strange that the questions in the case are not well presented by the record. "We must, of course, examine the questions with reference to the law of
The second section provides, that the appraisers of the counties through which the road shall run, if through more than one county, shall, within, etc., meet at, etc., and appraise the value of the road per mile, etc., and apportion the same among the counties.
Section 5 of the act provides, that “ if any railroad company shall be dissatisfied with the valuation so made by said county appraisers, such company may, provided they have complied with the provisions of the first section of this act, appeal therefrom to the state board of equalization at its first session thereafter, by serving a written or printed notice, sealed with its corporate seal, on the Auditor of State to that effect, not less than ten days before the meeting of such board, and said board of equalization is hereby empowered to examine the alleged grievances and grant such relief as may be deemed just.”
This law does not provide for any action by the district board of equalization upon the assessment made by the appraisers, nor does it provide for an appeal from the district board to the state board of equalization. Hence, when the complaint speaks of the action of the district board of equalization, with reference to this matter, it speaks of something which is not recognized or authorized by the law;' and so as to the appeal
It is said by counsel for appellant: “ The complaint, however, is good on demurrer. It is averred that the district board 1 appraised and fixed the value of plaintiff’s road in said Bartholomew county, for taxation for state, county, and township purposes, at five thousand dollars per mile, from which plaintiff appealed to the state .board of equalization, for the .State of Indiana, which convened at the office of the Auditor of State, at Indianapolis, Indiana, on the 5th day of July, 1869, and on the 14th day of July, 1869, said state board of equalization, upon a hearing of said appeal, reduced said appraisement to three thousand five hundred dollars per mile of their road in said county, of which the auditor of said county was duly notified by the Auditor of State, and no other appraisement of said land for taxation for the years 1871 and 1872 has been had; yet the plaintiff says that the auditor of said county, without authority for so doing, entered said road for taxation In said county for the years 1871 and 1872,. appraised at five thousand dollars per mile.’ ”
Conceding, without deciding that the complaint is good, we will refer to and examine the paragraphs of the answer.
The first paragraph shows, that the pleader was under the same misapprehension, with reference to the law of the case, as that which contributed to shape the complaint. As to the legality of the state board of equalization, which is called in question by the first part of the paragraph, we do not deem it necessary to do more than to say that that body has already been held illegal by this court in two cases : The State, ex rel. Evans, v. McGinnis, 34 Ind. 452, and Shoemaker v. The Board of Comm’rs, etc., 36 Ind. 175.
The paragraph has another allegation, which we think fairly meets the allegation relied upon in the complaint to make it good. That' allegation is, “ that said assessment of taxes with which the plaintiff is charged is the same as made by the offi
The second paragraph alleges, inter alia, that the taxes were levied upon the assessment as the same was made by the proper officers duly authorized to originally assess the same, and that the alleged change made by the state board of equalization was made more than ten days after it met. The state board, had it been legally formed, had no power to act after the time during which it might legally remain in session. This is so decided in The State, ex rel. Evans, v. McGinnis, supra. We think the second paragraph of the answer a good bar to the action.
The third paragraph shows that a majority of the district boards of equalization failed to meet at the places designated by law; that they had no delegate attending the meeting' of the state board, and that only a minority of the members of the state board were legal members thereof. But the answer* does not, in any way, meet the allegation in the complaint, that “ no other appraisement of said road for taxation for the years 1871 and 1872 has been made,” than as stated in the complaint. For this reason we do not see how it can be sustained. It would seem to be wholly immaterial what action was taken by the state board, if there was no other assessment, made than that which is alleged to have been made by the district board of equalization, since, as we have seen, the district board had no power to make any assessment. In our opinion, for this reason, the third paragraph of the answer was-bad.
The reply, as may be seen, was to all the paragraphs of the answer. If we concede that the state board of equalization was a legally organized board, or a board defacto, as claimed, still, it could not have prolonged its session, as we have seen, beyond the period of ten days; and, as the second paragraph, of the answer alleges that the reduction in the amount of theappraisement was made after the expiration of that time, and
Upon the record, as it stands, the appellee is entitled to an affirmance of the judgment.
The judgment is affirmed, with costs.
Rehearing
Os' Petition- eoe a Rehearing.
A very able and elaborate brief has been submitted by counsel for appellant, in support of her petition for a rehearing. We are again urged to overrule the case of The State, ex rel. Evans, v. McGinnis, 34 Ind. 452, which held the state board of equalization of 1869 illegal, and its proceedings void. We are entirely satisfied with the ruling in that case, and the grounds upon which it proceeded. It was followed and adhered to in the subsequent case of Shoemaker v. The Board, etc., of Grant County, 36 Ind. 175.
The facts in the present case are, in substance, the same as in the The State, ex rel. Evans, v. McGinnis, supra.
The facts averred in the third paragraph of the answer do not show, in our opinion, that the state board of equalization was a legal body. The matters set up in the reply do not materially affect the question involved or render necessary a different ruling.
It is, in the next place, earnestly insisted, that the appeal by the appellant from the valuation made by the county assessors to the state board of equalization either vacated the valuation and assessment made by the county assessors, or suspended proceedings thereon until there was a decision of such appeal by a valid and legal state board of equalization.
If either proposition is true, the injunction should have been granted. If the appeal vacated the valuation and assessment
The fifth section of the statute of 1865, Acts Special Session, p. 123, gives the right of appeal, and is as follows:
“ Sec. 5. If any railroad company shall be dissatisfied with the valuation so made by said county appraisers, such company may, provided they have complied with the provisions of the first section of this act, appeal therefrom to the state board of equalization at its first session thereafter, by serving a written or printed notice, sealed with its corporate seal, on the Auditor of State to that effect, not less than ten days before the meeting of such board, and said board of equalization is hereby empowered to examine the alleged grievances and grant such relief as may be deemed just.”
There is no provision in the statute declaring the force and effect of the appeal. It is neither provided that such appeal shall vacate the valuation made by the county appraisers, nor suspend proceedings thereon. The appellant was not required to give any bond. The question was not to be heard de novo by the state board of equalization. The board was empowered to examine the alleged grievances, and grant such relief as might be deemed just. The state board was limited and restricted to the examination of alleged grievances. If grievances were shown to exist, then the power was conferred to grant relief, otherwise not. The’ valuation of the county appraisers remained in force, and the presumption was' to be indulged that it was correct; and the grievances were to be alleged and shown by the appellant. The board was empowered simply to examine and review the action of the county appraisers, in the particulars alleged and shown to exist. The
In Young v. The State, 34 Ind. 46, the effect of an appeal was considered and decided, where the court said : “ When an appeal is taken and perfected from the judgment or determination of an inferior court to a superior court, as in the case of appeals from the board of commissioners, or from a justice of the peace to the circuit or common pleas court, and the cause or matter is to be tried in the circuit or common pleas court de novo, upon the original papers, the appeal operates to suspend or supersede further proceedings under the judgment or determination from which the appeal is taken.”
The ruling, in the above case has been adhered to in Lincoln v. The State, ex rel. Wood, 36 Ind. 161, and Blair v. Kilpatrick, 40 Ind. 312.
Then, as the appeal to the state board was not to be tried de novo, upon the original papers, it manifestly results, from the doctrine above stated, that it did not suspend or supersede the valuation made by the county appraisers; and as the state board of equalization was illegal, and its proceedings void, it follows, that the action and determination of the county appraisers remained in full force and unaffected by such appeal. The Auditor of State had the power to require the appellant to pay taxes upon the valuation made by the county appraisers.
The petition for a rehearing is overruled.