82 Ind. 493 | Ind. | 1882
The appellant, who was the plaintiff below, commenced this suit against the appellees to restrain them, as officers of the town of Ellettsville, from collecting a certain tax.
It is stated in the complaint, that the town of Ellettsville, by its assumed and pretended officers, claimed and pretended to be a municipal corporation, organized under the act of the Legislature of the State of Indiana, approved June the 11th, 1852; that John J. Harris, Samuel B. Harris and William Hanna, appellees, are assuming to act as trustees of said town; that Columbus Wires, George W. Houston and Alonzo Falkner are assuming to act respectively, as clerk, treasurer and marshal of said town; that said pretended municipal corporation is represented as being in Monroe county, Indiana, but that no such corporation was ever organized, as provided in sections 1, 2, 3, 4, 5, 6 and 7 of said act; that no accurate survey and map were made of the territory to be embraced within the limits of such pretended town or municipal corporation, when the taxes hereinafter mentioned were levied, and attempted to be collected from the property of the plaintiff.
The complaint then states: “And the pretended board of trustees did not, before the third Tuesday in May, determine the amount of the general tax for the current year as required by section 30 of said act. And your petitioner further represents, that the pretended authorities of said pi’etended town are now attempting to collect said illegal tax, amounting to $57.75, by distress and sale of the petitioner’s property, and will sell the same if not restrained and enjoined by the court; that said tax is illegal, oppressive and void.”
The plaintiff prays for a restraining order, a perpetual injunction, and for general relief
The complaint was verified. A temporary restraining order was granted in vacation.
The appellant demurred to the answer. The demurrer was overruled, and, the appellant declining to plead further, final judgment was rendered for the appellees!
The grounds upon which the appellant objects to the tax are: 1st. That the town of Ellettsville was not organized according to the 1st, 2d, 3d, 4th, 5th, 6th and 7th sections of the act of 1852; 2d. That the board of trustees of the town did not determine before the third Tuesday in May the amount of the general tax for the current^year.
The appellant does not, in argument, seriously object to the tax on the first ground. He says: “We do not think it necessary to argue whether, under the allegation of the complaint, the alleged municipal corporation was ever a defacto corporation, or whether the rule recognizing the acts of a de facto corporation as valid will extend to injunction proceedings instituted by a member or a part of the corporation.” This part of the complaint is unanswered.
The complaint does not state in what year the tax complained of was levied. Nor is it directly averred that any tax upon any specified or described property of the appellant was ever levied by the appellee. It may be inferred from the .statement in the complaint, that “ the pretended authorities ■of said pretended town are now attempting to collect said illegal tax, amounting to $57.75, by distress and sale of petitioner’s property,” etc., that a tax had been levied by the appellee upon the appellant’s property, but in what year can not be determined inferentially or otherwise.
The answer alleges that, for the year 1880, the clerk copied the township assessor’s list of the taxable property of Ellettsville, and that the same was adopted by the trustees of the town, placed upon the duplicate and declared to be the assessment of the town for the year 1880.
If we assume, as we may consistently with the pleading, that this was the assessment and levy complained of, it was not void for the reason that the board of trustees of the town of Ellettsville did not determine the amount of the general tax for the current year, before the third Tuesday in May, 1880. The word “ determined,” as used in act of 1852, means to assess and levy the tax. Town of Williamsport v. Kent, 14 Ind. 306.
The act of March the 10th, 1879, which took effect upon its passage, and was in force in the year 1880, abolished the •office of assessor in incorporated towns, and provided that thereafter the assessment of personal and real property, as made and returned by the township assessors to the county auditor, as now provided bylaw in cities and incorporated towns, shall constitute the assessment for taxation for city and town purposes. It also provides that the town clerk .shall have access to the assessor’s books in the auditor’s office,
By this act, the time for determining the amount of the general tax for the current year is extended, by necessary implication, so as to give the officers of the town a reasonable time to examine and copy the assessor’s books after the county board of equalization shall have equalized the assessments. The answer, therefore, shows that the tax for the year 1880, was not void because the amount was not determined prior to the third Tuesday in May. The answer was good enough for the complaint.
The complaint does not show that any assessment had been placed upon the duplicate of the town, nor that the duplicate had been placed in the hands of the proper officer for collection. For the want of such averments it was radically defective. Pugh v. Irish, 43 Ind. 415; Brown v. Herron, 59 Ind. 61; Mullikin v. City of Bloomington, 72 Ind. 161. As. the answer was good enough for the complaint, there was no error in overruling the demurrer to it.
Per Curiam. — It is ordered, upon the foregoing opinion,, that the judgment below be affirmed, at the costs of the appellant.