*1 Review L. Board et al. v. The Thomas Co. Grant 13, 1971. December Filed 1170A183. [No. January Rehearing 4, 1972.] denied *2 Marion, Hogston, Wayne, Hobbs, Max E. of Fort Alfred appellants. for Attorney Johnson, Marion, Sendak, Theodore L.

Gene R. Joseph Miller, Bravard, Jr., General, Tower Walter E. Scott Deputies Attorney General, appellees. Bokkelen, S. Van for THE J. STATEMENT OF CASE AND BUCHANAN, taxpayers by seeking appeal FACTS —This concerns an action county levying enjoin from and state officials based taxes alleged county-wide assessment. on an invalid taxpayers (Cooper) other Cooper and filed L. Thomas Injunction County in Grant on Permanent Complaint change after the February 26, venue suit was Court. Miami Circuit by heard the alleges that the Complaint property reassessment of

The year contrary County that law and Grant by levy unjust granted the court the relief is unless upon place illegal a cloud will title of the real tax thereby causing irreparable Cooper, injury. estate owned asserts, deprive action, Cooper will him tax- and other Such process equal pro- property without due their payers of deny equal will them a uniform law and tection of the guaranteed by the as of taxation Constitution of rate of Indiana. and the State States United Complaint, response two Motions to the were

In Dismiss filed. County Grant County Review of Board of Defendant paragraphs, first in two to Dismiss a Motion filed

first had no alleging trial court that paragraph (B) (1)], and the TR. subject matter [Rule over Complaint alleging that failed to paragraph second (B) granted TR. could be relief [Rule which a claim (6)]. defendant filed was Dismiss Motion to

The second alleging paragraph, in one of Tax Board Commissioners State juris- (1) the court was without (B) that TR. 12 Rule under subject matter. over diction “the referred as hereinafter defendants are

These two Boards.” Dismiss, filed the Boards Motions to also

Accompanying the taxes in showed: that the amount affidavits several County; already collected in Grant had been $250,000 completed had of Review all Board the Grant *3 duly processing adjourned, after and had procedures review Ralph Clester, Fall, of James names V. filed in the appeals parties appeal), Inskeep (all to this of whom but Fred and filed in the name of L. appeal had been Thomas no that plaintiffs, only Inskeep named Fred filed the Cooper; that of Commissioners; Tax Board of and appeal to State the an only appeals from the entire re- further, that County were filed with State Board in Grant assessment n Tax Commissioners. Following Dismiss, of Motions to the submission briefs granted arguments held. court both and oral filed were 22, 1970 in these words: Dismiss on June Motions to having been Dismiss, as the Defendants “Motions to filed briefed, having argued under and been heretofore being sufficiently prop- advisement, erly and the Court now premises, now sustains the in the advised Defendants’ dismissed at Plaintiff’s costs. Dismiss. Motions to Cause attorneys.” (Emphasis notify all Clerk to dismissed. Cause supplied.) Cooper timely Errors. then his to Correct filed Motion an court committed that trial maintains ISSUES — granting that Dismiss and error of law the Motions to a Complaint sufficient to issue is whether or not his is granted. take The Boards claim which relief could be had court position not that is or the issue whether subject-matter jurisdiction. presents exact question as

This us a to the with threshold agreed reasons Boards, issue to resolved. We with the not appear, whether or will hereinafter that the issue is subject-matter jurisdiction. there- court had Our decision parts: fore will be in two decision. A determination of the issue for

ONE: jurisdiction over the trial court had Whether TWO: Complaint? matter of the arguments party concern- were made either No relevant ing Part One. argues Two, Cooper Part that:

As to (1) adequate remedy entitled he has no at law

equitable do relief since the administrative remedies provide upon the reassess- class attack total for a ; only by equity will ment resort have avail- he remedy. prompt a able efficient and convenient invoking equity multiplicity suits only by will a (2) avoided; right individ- (3) between the of an there is distinction taxpayer aside seek the to set ual aid of courts alleged illegal right tax of a number and the community taxpayers join suit in a district *4 similarly all and others on behalf of themselves taxpayers protect their situated in their roles as damage taxing financial in the district. This interest generally by public kind and for this is sustained legal remedy. damage no administrative is or there that: position is The Boards’ no necessary there is equitable because

(1) relief is not actions; danger multiplicity of of a seeking relief adequate procedures (2) there exist reassessment; alleged erroneous from the (3) review provided by procedure for statute a there is judi- agencies

of the action administrative from remedy plaintiff cial is excluded and therefore any questioning equitable procedure assess- ment.

(4) existing procedural comply the failure with the

requirements jurisdictional. is

DECISION for determination is whether The issue PART ONE: subject matter of the court had trial complaint stated a claim for relief. whether (1) relatively (B) Motion new a Rule TR.12 is a Because legal proper menagerie, a brief discussion animal in our its pertinent. use is adoption the Indiana Trial Pro- Rules of

Prior to juris- January 1, cedure, 1970, the defense of lack of effective by demurrer, of the matter could be raised diction depending upon abatement, dismiss, plea in motion to raising (B) (1) simplified circumstances. TR.12 Rule by providing for either consolidated motion be- this defense Harvey’s by the itself. Prac- answer or answer fore pp. tice, 604-608. Vol. pleading, the old this still

As under rules defense may at time. It cannot raised available be waived any point during parties or the court at the action including appeal. State Wedmore v. McCoy Able E. 2d 30 N. E. 528.

N. substantially copy a carbon TR. 12 is of Federal Since Rule

237 (B) 12, procedures apply Rule TR. Rule certain federal to a motion, (1) not. others will jurisdiction subject must

In the federal courts matter of the affirmatively juris pleaded, proper be in the absence complaint may

dictional the dismissed. averments (See (C.A. Ship Building (1948), Miller v. Brown Co. allegations 5) Specific jurisdictional 956.) 165 F. 2d usually necessary practice not under our most courts since general jurisdiction. possess of this Loeb Mathis state (1871), Further, question 37 Ind. a 306. where of failure pursue statutory concerned, not failure remedies is it is the allege jurisdiction preempts court, the of the but comply rather it is with the statute that is “failure jurisdictional.” Monon R. R. Co. v. Citizens Sherwood Addition, 620, Forest App. Marion Duffecy, (1952) N. E. 2d Ballman v. 102 N. E. 2d 646. parties

Federal case law allows affidavits to filed subject-matter juris motion where a to dismiss for want of considering In diction is before court. a such motion, unlike a motion to dismiss for failure to summary judgment, claim or motion for the court weigh may it evidence before to determine the existence requisite (See nonexistence of the facts. Ramirez and Feraud (D.C. Palmas Cal.), Chili Co. v. Las Food Co. 146 F. Supp. 594, cert. denied F. 2d 78 S. Ct. aff’d agree 927, 2 L. 2d 357.1 U. S. Ed. We of affidavits use necessary purpose for this is aid to the decision. court’s When a trial court is confronted with a motion to dismiss (B) (1), must, then, Rule it under TR. 12 decide complaint, motion, affidavits or evi other possesses submitted dence whether or author ity adjudicate to further the action. In the before case subject-matter depends us the of the court on Generally, Hotzoff, 1. See Barron and Federal Practice and Proce- (Wright ed.), 1-A, dure Vol. § statutory complied remedies with has

whether jurisdictional question. R. R. v. Citi Monon Co. available —a Addition, County, supra; Marion Forest zens Sherwood supra. Duffecy, Ballman v.

Thus, properly decision framed the issue for juris- trial court had no Boards’ Motion to Dismiss that the Cooper’s matter because failure diction of the adequate comply remedies. with *6 opinion lacked PART It is our that trial court TWO: the Cooper’s Complaint. of the matter of Cooper now look to the We remedies available to they adequate. if are to see Because various statutes the merely identify lengthy, are we will consideration under pertinent. They those which are five in summarize number: through appealed his assessment 1. could have through provided the in Ind. Ann. Stat. 64-1001 remedies §§ provide (Burns Supp.),2 64-1004(a) of which for review Review, by individual reassessments of Board county Commissioners, Tax Board of a circuit State superior court, important court. An addition or and to this brought procedure in when review was about this consolidated, legislature “appeals may provided that be expense appellants, request in order save at the of justice.” Ind. thereof when it can be done in the interest of Thus, extensive 64-1004. there exists an Ann. Stat. § many taxpayers may challenge remedy by assessment. re- their (Burns 1961)3 a 2. Ind. Ann. Stat. establishes §64-713 whereby taxpayers

procedure can secure of reassessment 1961, 319, 1201, p. 893; 1963, 333, 2. For 64-1001 see Acts § ch. ch. § 811; 1965, 4, p. 22, p. 280, § ch. 770. § 1961, 319, §1202, p. 893; 1963, 333, Acts For 64-1002 see ch. § ch 23, p. 811. § 1203, 1961, 319, p. 893; 1965, 280, For see Acts ch. §64-1003 § ch. 5, p. § 770. 1961, 319, §1204, p. 1963, 231, Acts ch. For 64-1004 see § ch. 1, p. 317. § 319, 1204A, (a) For 64-1004 see Acts ch. as added § § Acts 204, 5, p. ch. 768. § 319, 703, p. 3. Acts ch. 893. § any township part property the entire or thereof real of upon petition filed Board of Tax with State Commission- requisite resident owners of taxable ers number of township. remedy particular property in This is general years years periodic in elections or of available reassessment. (Burns 1971)4 gives 3. Stat. tax- Ind. Ann. §64-716 remedy

payer a direct State of Tax Com- to the Board by providing petition “A for reassessment missioners that any particular parcel parcels property may real or Tax filed with the State Board of Commissioners on or year including any general March 31st in elec- before tion reassessment of year year including any periodical but not in which a property pursuant real becomes effective provisions to the of this Act.” (Ind. in effect has a refund 6which allows a statute Ann. Stat. (Burns 1971)5 taxpayer 64-2081 to file § years payment refund within three claim for a if illegal, refund will made tax is with interest. 6% by resolution of state 5. Reassessment discretion board. “If in Board of Tax of the State Commissioners shall necessary, equitable in order to maintain an be deemed just valuation, property any township real assessed county townships, whole, or counties or the state as a or designated property any specifically real be reassessed Tax any year, may adopt Board of the State Commissioners declaring its belief that resolution such action neces- a sary.” Ann. 64-714.® Ind. Stat. § *7 allegations Cooper’s complaint challenge of the 1969 being reappraisal and re-assessment in Grant as illegal and for various reasons and erroneous that the amount determined therefrom will levy tax to result in the of be of allege illegal they any It does not in tax. an have manner any attempted to avail themselves of of these part. in or remedies whole challenges supra

Cooper supra being 64-713 and 64-716 as inadequate procedures because the set forth are not available 1961, p. 893; 319, 706, 1963, 333, 15, p.

4. ch Acts ch. § § 811. 1963, 280, 801, p. 5. ch § Acts 426. 1961, 319, 704, p. 893; 1963, 333, 14, p. 6. Acts ch. § ch. § 240 years, forcing taxpayers pay a tax

in certain thus dealing a an invalid assessment. In with based on very argument, Supreme of similar Court (1902), Mfg. Indiana in Co. v. Koehne United States 681, 651, 452, a S. 47 L. Ed. Ct. held that where U. S. wrong- provides recovery proceedings taxes statute for fully assessed, adequate remedy at an law exists. Mfg. Koehne, supra, McConnell Co. v. was followed in Hampton Supreme 547,

v . where our proposed held that mere fact that a assess Court tax or illegal justify equity. is or be a ment will does not resort to equity multi invoke in order a Cooper also to avoid would The affidavits before the trial court do plicity of suits. Gray, Auditor, et al. v. Foster out this contention. bear App. Fesler, Auditor v. E. and (1910), 46 Ind. N. 128 N. E. are cited Bosson invoking equity multiplicity justify where a appellant applicable are not various These cases is threatened. suits Gray, supra, indi reasons, is that in one of which the facts many taxpayers involved, were in thousands cated Bosson, supra, taxpayers were involved. Fesler over long supra, Also, decided before 64- these cases were 64-713 supra, supra et were enacted before 64-1001 64-714 seq. supra, provide judicial amended review was further appeals. consolidation and for remedy supra provide 64-714 does not asserts that only taxpayers it can because invoked on initiative argument of Tax

of the State Board Commissioners. Is this provides part: plausible real ? It in than more state resolution of board. —If in “Reassessment shall tax board of commissioners the state discretion of equitable maintain necessary, in order to deemed township property any real valuation, that just assessed whole, county or the as townships, counties or or any designated property real be reassessed specifically adopt may of tax commissioners board year, the state *8 declaring neces- that its belief such action a resolution sary.” (Emphasis supplied.) perform its would not Cooper the State Board assumes agree. duty. do not We intended other remedies Cooper friends had followed the

If and his them, the State Board of Tax Commissioners to available alleged illegality of aware of the would have been made to reassessment, power and could have exercised their county. Cooper’s immediate entire reassess the Because courts, however, appeal opportunity never to the an was agency given reassessment. this administrative to review the dealing situation, Supreme in similar In with a our Court Bd. Review Assessments Kranz Ind. N. 2d 896 held that: E. shall assume that either fail in “We not board would duty performance of its statutes. under the Constitution and legisla- Courts should be slow to interfere with the process arbitrary tive taxation. action Where may be corrected a ministerial is not final but officer

by reviewing agencies provided in the statute under which ordinarily agencies ought given proceeding, he is those to be opportunity (Empha- to act resort to the courts.” before supplied.) sis existing expresses discontent statu- further with the theory bringing tory he is a class action remedies on situated, others in not his role as on of himself behalf protect prevent his own interest but an individual protect damage public their to the financial interest damage generally taxing This is which is sustained district. therefore, existing and, specifically and not channels protect persuasive inadequate this interest. He cites no otherwise, authority, position. for this The exist- are, ing statutory procedures opinion, adequate in our sought objective by Cooper. We will attain the broad *9 yet serve as a midwife to the remedy birth of another necessity. no need or which we see precise objectives sought by Cooper

Even if the could not existing statutory be attained procedures this is no of Judge speaking moment. Arterburn for the court Public in Service City Commission Indiana et al Indianapolis v. of of (1956), 70, 83, 235 Ind. 308, 131 N. E. 2d said: provides “However, procedure statute where the for a judicial remedy, or for

for such review any it excludes equitable procedure common law or to the extent such statutory provisions preserving adequate protecting in rights guaranteed such substantive general constitution, principles the Such statutes or of law. statutory procedure must be at least to the followed remedy extent available resort (Emphasis is made to of before equitable remedy.” common law or supplied.) Joseph Seagrams E. & Sons v. Board (1943), Com’rs. 220 491; 604, 45 N. E. 2d State ex Ind. rel. Hilgemann, White v. Judge Indiana 572, (1941), 218 129; Ind. 34 N. E. 2d Warren v. Telephone (1940), 93, Co. 26 N. E. 2d 399. remedy the words “to the extent of the Note available.” These imply taxpayer words that the remedies available ato need not every perfect respect. Furthermore, mere incon- justify imposition

venience does not equity if exists there a refund statute. v. Latimer California (1938), 225, 3, 305 U. S. 83 L. Ed. 59 S. process Ct. 51. Due only requires taxpayer adequate that a have administrative remedy proceeding and that orders from those remedies judicially Telephone reviewable. Warren v. (1940), Co. 93, 26 N. E. 2d 399.

Collectively, the five pro remedies set out above safeguard tect and taxpayers. the interests of Cooper and similarly may those situated still avail themselves of these including remedies, administrative statute, refund as granting of a Motion to Dismiss under 12(B)(1) TR judicata Tyler not res to their cause. See Gas Service Com pany v. Federal Power (1957), Commission 590, 247 F.2d cert. denied 263, 895, 78 S.Ct. 355 U.S. 2 L. Ed. 2d granted for lack a Motion Dismiss court both trial subject failure to matter jurisdiction granted. properly It upon relief could be claim which jurisdiction granted lack of to Dismiss for the Motion power subject matter, but was without of the upon complaint adjudicate to state a claim whether failed granted. trial determined relief could be When the court which Cooper’s had over the matter of no adjudicate question case, power it had no further complaint relief whether not the stated a claim (C.A. granted. 7), 2d Stewart U.S. could be F. Corp. (C.A. Fisch 6), v. General Motors L. F. cert. denied Ct. 2d 69 S. U.S. *10 Ed. 436. judgment

The trial court therefore moot2 insofar pertains 12(B) (6) as it TR. Motion to Dismiss. Rule judgment trial court is affirmed insofar as pertains 12(B) (1) Rule TR. Motion to Dismiss. JJ., concur; Sullivan, Robertson, dis- P.J.,

Lowdermilk and opinion. sents with of Dissent

Statement respectfully dissent the reason that P.J. I Sullivan, all the five remedies set each and forth I consider inadequate majority under the circumstances. Treasurer, Hasse Postlewaite, Auditor, 761; Fesler, v. Bosson

E.N. 145. E.

128 N. Reported in N. E. 2d 533.

Note. — judgment any practical, which cannot have A on some matter (See controversy. Dictionary (4th legal, Law effect Black’s ed. p. 1159.)