172 Ind. 237 | Ind. | 1909
Appellee’s relator commenced this action mainly for the purpose of obtaining a mandamus against Cyrus J. Clark, as auditor of Marion county, Indiana, and as an ancillary matter to this action demanded relief by injunction against the treasurer of said county, a coappellant herein, in order, as asserted, to preserve the subject-matter of the controversy between the parties. The complaint is quite long, and refers to and sets out several documents, amounts and many matters in detail. The following appears to be the substance of some of the facts alleged: The relator continuously since 1889 has been a steam railroad corporation under the laws of the State” of Indiana. The defendants were respectively the duly elected, qualified and acting auditor and treasurer of Marion county, Indiana. Prom 1897 to 1906, inclusive, the relator was a taxpayer in the city of Indianapolis, and in Center and Wayne townships of Marion county, Indiana, and during said time had six divisions running into the city of Indianapolis. The relator during said years also owned real estate in the city of Indianapolis which was not a part of its right of way. In the latter part of the year 1906 the treasurer of Marion county, after notice of his intention .so to do, made a special assessment against the relator in said city of $2,795.52 on alleged omitted property, consisting of four-fifths of a mile of track on relator’s Chicago division. Early in 1907 this assessment was
It is expressly alleged that the- defendant Clark, as auditor, refuses to apportion said taxes so paid between the city ,of Indianapolis and Center and'"Wayne townships, although often requested to do so; that before commencing this action the relator demanded of said Clark, as such auditor, that he
Defendant Clark, as auditor, separately demurred to the complaint for want of facts. His demurrer was overruled, to which he excepted. Defendant Ensley, as treasurer, also separately demurred to the complaint: (1) For want of facts; (2) that several causes of action had been improperly joined in the complaint; (3) that the plaintiff had not the legal capacity to sue; (4) that there is a defect of parties plaintiff, to wit, the Cleveland, Cincinnati, Chicago & St. Louis Railway Company is a necessary party plaintiff as against this defendant. This demurrer was overruled, to which the defendant treasurer excepted, and thereupon each of said defendants elected to abide by his separate demurrer to plaintiff’s complaint and declined_to plead further. The court then found for the plaintiff, against each of said defendants, that the material allegations of the complaint were true, and that plaintiff was entitled to have judgment against
Appellee admits that it has based tbis action on the following act passed in 1907, and entitled “An act providing for the apportionment and refunding of taxes illegally assessed and paid,” etc. (Acts 1907, p. 227, §6091 Burns 1908), which act is as follows: “That in all cases where lots or parcels of ground or property lying partly in one township and partly in another, or partly in a township and partly in a city or town, have been or hereafter may he, through a mistake or inadvertence assessed in one of said townships for the whole amount of taxes which should have been assessed in both of said townships or in such township and said city or town, or assessed in said city or town for the whole amount of taxes which should have been assessed in both said township or town, or in said city or town, and the taxes so illegally assessed have been paid by the owner or owners of said real estate or property through a mistake of fact, it shall be the duty of the county auditor to apportion
The reasons advanced by appellants’ counsel for a reversal are: (1) That the act of 1907, supra, does not apply to taxes assessed against railroad property; (2) that the act makes no provision for refunding taxes under the facte in this action, as it cannot be construed to apply to city taxes, for it mentions only township taxes in respect to refunding; (3) that the relator is a necessary party to this action, and not the State of Indiana, which, as claimed, is the sole plaintiff, and therefore is not entitled, under the facte, to any relief by injunction; (4) that the complaint seeks to obtain not only a mandamus against the auditor, but also seeks an injunction against the treasurer and an order against said officials for a refunding of the taxes ovei’paid. It is asserted that all of this relief was awarded to the relator by the judgment, or, in other words, the relator was awarded more relief than it was entitled to under the facts alleged in the complaint. Some other questions are raised by the 'appel
In the latter ease, the court held that a railroad company, in an action against it to recover taxes, might plead as a set-off an excess of taxes which it, by mistake, had previously paid. The court in that appeal said: “It seems to us that the company is entitled to plead as a set-off, and have credit for, any excess of taxes it has heretofore paid by mistake, for the court, having recognized jurisdiction and power to adjudge in favor of the plaintiff the amount of taxes actually due, notwithstanding there has not been a formal and complete assessment, should exercise it to the extent of doing complete justice to each party. ’ ’ Appellants ’ counsel argue that the statute here involved must be strictly construed, and, applying this rule, they assert that it cannot be said that “the legislature intended to try to take money out of the city treasury that already belongs to it.” The statute in question is in its nature remedial in respect to all persons embraced within its provisions, and therefore should be accorded a liberal construction in order fully to accomplish the object or purpose which the legislature had in view by its passage.
The record in this appeal presents no available error. Therefore the judgment is affirmed.