191 Ind. 282 | Ind. | 1921
Appellee (plaintiff below) sought and obtained a temporary injunction restraining appellants until the further order of the court “from collecting or seeking or attempting to collect aiiy taxes from plaintiff, under and pursuant to the attempted assessment of plaintiff’s railroad property in Marion county, State of Indiana, made by the defendant state board of tax commissioners of the State of Indiana, at its fourth session, in December, 1919, or pursuant to or under authority of said order of said state board, made on December 5, 1919, purporting to reassess plaintiff’s said railroad property and improvements thereon, and purporting to increase a valuation thereof previously made in July, 1919, by said board * *
From the granting of said temporary injunction, appellants appeal. The only error assigned and relied upon for reversal is the entry by the Marion Circuit Court of an interlocutory order on December 27, 1919, granting the motion of appellee for a temporary injunction.
The complaint, to which a demurrer was overruled, alleges in substance, that on March 1, 1919, plaintiff, a railroad corporation, was the owner subject to certain leases as to parts thereof of certain steam railroad lines and right of way and other property in Marion county, Indiana, denominated “railroad track” required by law to be listed, scheduled and returned to said state board of tax commissioners for assessment for taxation for the year 1919. That between said March 1, 1919, and May 15, 1919, plaintiff did make and file the required schedules and statements with said defendant state board of tax commissioners in full compliance with the tax laws of the State of Indiana in that regard; that thereafter at its first session, begun on the first Monday of April, 1919, said state board of tax commissioners duly assessed for taxation the said railroad property and improvements thereon, of plaintiff in Marion coun
But it alleges that thereafter, at the fourth session of said board and without any appeal being taken or anything being filed with the board, requesting or requiring such action, the state board of tax commissioners made a new assessment of what is alleged to be the same property of the petitioner, valuing it at a total sum which was $1,785,000 larger than the original assessment, and now threatens to certify it to the county auditor, and that said auditor threatens to put it on the tax duplicates, and the county treasurer threatens to collect taxes based upon the increased valuation.
The state board of tax commissioners is a body of special statutory powers and acts outside of its granted powers are absolutely void. Eaton v. Union County Nat. Bank (1895), 141 Ind. 136, 40 N. E. 668; First Nat. Bank v. Brodhecker, Treas. (1894), 137 Ind. 693, 37 N. E. 340; Bell v. Meeker (1906), 39 Ind. App. 224, 178 N. E. 641; Scott v. Barr (1914), 57 Ind. App. 508, 106 N. E. 891; Gray v. Foster (1910), 46 Ind. App. 149, 92 N. E. 7.
In Gray v. Foster, supra, the court stated the rule as follows: “The State Board of Tax Commissioners is a statutory board, and its power and authority are conferred and limited by the statute. * * * Where power is given it to do a certain thing in a certain manner,- the manner prescribed is the measure of power given.”
The board might at a subsequent session correct a clerical error made in its records at a prior session so that the amended record would remove all doubt and uncertainty in regard to the action of the board at such prior session. First Nat. Bank v. Isaacs (1903), 161 Ind. 278, 68 N. E. 288.
In the case at bar there is no claim that the board by its action was attempting to correct a clerical error or to assess omitted property. Its action was an attempt to reassess appellee’s railroad property at its fourth session when said property had been assessed at the first session and no appeal had been taken or request for reassessment made.
In order to justify the board in assessing appellee’s property at its fourth session, the statute on its face must disclose the right to take such action. The powers of the state board of tax commissioners and their jurisdiction and duties at their several sessions are conferred and defined by §171 of the tax law of 1919 (Acts 1919 p. 198, 299, §10139b et seq. Burns’ Supp. 1921), which provides that:
“Said state board of tax commissioners shall annually convene in the statehouse in a room to be provided therefor, on the first Monday in April of each year, for the purpose of assessing the property of all persons, co-partnerships, associations, joint stock associations or corporations required by law to be assessed by the state board of tax commissioners, and shall devote such time as shall be necessary to make such assessments not exceeding, however, fifty days. It shall reconvene on the first Tuesday after the first Monday of July following,
An analysis of §171, supra, shows: First: That the state board of tax commissioners must assess railroad corporations at its first session commencing on the first Monday in April, and continuing fifty days. Second: That at its second session which convenes on the first Tuesday after the first Monday in July, and lasts for twelve days, it may rehear such assessments and applications for revisions or change in the assessments of railroad property, etc. Third: The third session commences on the Monday next succeeding the second session, and is for the purpose (a) Of hearing appeals; (b) For reviewing and reassessing all property certified by county auditors as hereinafter provided; and (c) For the purpose of equalizing the assessment - of all property, real and personal.
To understand the powers of the state board at its third and fourth sessions with reference to appeals, reviews and reassessments, it is necessary to turn to §189 (Acts 1919 p. 198, 309, supra) which gives to any taxpayer or member of the local board the right to appeal to the state board; and also provides that the state board, if it is dissatisfied with the action of the county board of review, upon any original assessment, “shall have the right, at any time before the adjournment of its third session” to require the county auditor to certify for re
Fourth: The fourth session convenes on the third Monday of September and lasts until the Saturday following the first Monday in December. At this session the board has the right: (a) Of certifying and finally determining the tax levies as certified to the board by county auditors; (b) To fix and determine the changes necessary in tax levies; (c) To review and reassess any property, real or personal, or both, “in any taxing unit of the state” so at its third session ordered certified up for such review and assessment.
The original assessment which it is authorized to make at its fourth session, is shown by a later part of the same section to be of omitted property. The power to “review and reassess” as conferred by this part of the section, has reference to local assessments certified up by the county auditor on the order of the state board of tax commissioners under the clause of §189, supra,, above referred to.
Fifth: Following the clauses in §171, supra,, defining the jurisdiction and duties of the state board at each of its four sessions, is this clause: “The assessment made at the first session of the board shall stand as the assessment by the board unless application is filed with the State Board of Tax Commissioners for reassessment, or for relief from the original assessment, at least ten days before said second session, and the assessment when finally determined by said board at its
That part of. §171, supra, giving to the state board of tax commissioners the right at its fourth session “to review and reassess or assess originally any property, real or personal, or both, in any taxing unit of the state” did not in this case confer upon the state board of tax commissioners the right to reassess appellee’s property -at the fourth session of the board.
The decision of the state board of tax commissioners in making assessments within the scope of its authority is final except under circumstances where relief may be granted by the courts. The powers of the state board to assess property are prescribed
The settled law in this state, is that taxes cannot be imposed or their collection enforced, except in the manner prescribed by'law. Hamilton v. Amsden (1882), 88 Ind. 304; State, ex rel. v. Illyes (1882), 87 Ind. 405; Scott v. Barr (1914), 57 Ind. App. 508, 106 N. E. 891; State Board, etc. v. Holliday (1898), 150 Ind. 216, 49 N. E. 14, 42 L. R. A. 826; Fesler v. Bosson (1920), 189 Ind. 484, 128 N. E. 145.
Appellant claims that the injunction should not have been granted because the granting of it would produce greater injury than the refusal of it would have produced.
A court of equity should not deny relief against an illegal and void act on the ground that public inconvenience will result from granting it. Equity does not balance conveniences when such balancing involves the preservation of an established right which will be destroyed if relief is not granted. American Smelting and Refining Co. v. Godfrey (1907), 158 Fed. 225; Sullivan v. Steel Co. (1904), 208 Pa. 540.
The appellant claims that the appellee has an adequate and complete remedy at law; that if its assess-, ments complained of are illegal and void yet its rights are protected by §§332, 333 and 334 of the 1919 (Acts 1919 p. 198, 372, 373, supra) tax law, providing for the refund of taxes wrongfully assessed.
The refunding statutes authorize a refunder from the county treasurer so far as the same was assessed and paid for county taxes, and a similar provision is made for a refund from the state. There is no provision for the taxpayer procuring any refund of taxes from either a township or an incorporated town or city. Therefore appellee, unless it is entitled to an injunction, must pay
There can be no refunding of taxes without legislative authority and the refunding statute of 1853, which in this particular is identical with the Act of 1919, applies only to state and county taxes and not to township or city taxes. Simonson v. Town of West Harrison (1892), 5 Ind. App. 459, 32 N. E. 585.
It has been held by the Appellate Court that where the claim for a refunder is filed with the board of county commissioners before distribution has been made to a town or a township trustee of the town or township taxes, the refund may be properly made for all taxes wrongfully exacted. DuBois v. Board (1894), 10 Ind. App. 347, 37 N. E. 1056.
And it has likewise been held by the Appellate Court that where the taxes sought to be recovered had been paid over to the trustee of the township, to be by him turned into the general fund of such township, before the claim for a refunder was filed, such fact absolutely defeats recovery under §6088 Burns 1908, which is the tax refunding statute. Cincinnati, etc., R. Co. v. Wayne Tp. (1913), 55 Ind. App. 533, 102 N. E. 865. '
The suggested remedy under the tax refunding statute is not applicable, and is neither plain, speedy nor adequate. Unless the remedy at law is as plain, complete and adequate as the remedy in equity, injunction will lie. Champ v. Kendrick (1892), 130 Ind. 549, 30 N. E. 787; Xenia Real Estate Co. v. Macy (1897), 147 Ind. 568, 47 N. E. 147; Meyer v. Town of Boonville (1904), 162 Ind. 165, 70 N. E. 146; Union Pac. R. Co. v. Board, etc. (1918), 247 U. S. 282, 38 Sup. Ct. 510, 62 L. Ed. 1110.
This would seem to preclude the right of refund in every case where the assessment had been made by a taxing officer on his judgment that he then had the right to make it, unless the taxpayer at the time applies for a rehearing or takes an appeal. In the instant case the statute makes no provision for a rehearing and in fact there could have been none; and of course there was no remedy by appeal. Where the legal remedy is involved in such doubt and uncertainty as this it is deemed inadequate and équity has jurisdiction. See Union Pac. R. Co. v. Board, etc., supra; Davis v. Wakelee (1895), 156 U. S. 680.
The law providing for a refunder of taxes.does not furnish a remedy as complete, plain, adequate, practical and efficient to the ends of justice and its prompt administration as a remedy in equity.
In the instant case we conclude that the appellee was entitled to equitable relief and that the injunction was properly granted. We find no error in the record. Judgment affirmed.
Ewbank, J., not participating.