EC Atkins & Co. v. Dunn

• Decision Date: 02 October 1928
• Docket Number: No. 4003.,4003.
• Citation: 28 F.2d 5
• Parties: E. C. ATKINS & CO. v. DUNN, County Auditor, et al.
• Court: U.S. Court of Appeals — Seventh Circuit

28 F.2d 5 (1928)

E. C. ATKINS & CO. v. DUNN, County Auditor, et al.

No. 4003.

Circuit Court of Appeals, Seventh Circuit.

June 20, 1928.

Rehearing Denied October 2, 1928.

Louis B. Ewbank and Joseph J. Daniels, both of Indianapolis, Ind., for appellant.

William H. Thompson and William Bosson, both of Indianapolis, Ind., for appellee.

Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

The appellant, a corporation, resident and paying taxes in Marion county, Indiana, brought suit against the board of commissioners, the auditor, and the treasurer of that county, the trustee of certain townships in the county, the mayor, the city controller, members of the common council, and members of the board of school commissioners of the school city of Indianapolis, all citizens of the state of Indiana and residents of Marion county.

The bill covers 23 printed pages of the record, but the averments necessary to be considered on this appeal are, in substance, as follows:

That the cause of action declared on arises under the Constitution of the United States, as hereinafter shown, that the amount in controversy exceeds the sum or value of $3,000, and that the bill is brought on behalf of the appellant and all taxpayers of Marion county in a similar situation.

That, pursuant to law, appellant's property was assessed directly by the state board of tax commissioners for the year 1919, its tax paid being $23,137.92; that the property of over 600 other private corporations, and of many banks, trust companies, and public utility corporations, was likewise assessed directly by the state board in 1919, and taxes were paid on the basis of these assessments in the total sum of many millions of dollars.

That the property of some 120,000 individuals, not under the law assessable in the first instance by the state tax board, but by the township assessors, was first assessed by such assessors in the spring of 1919; that on August 23, 1919, the said board made an order horizontally increasing all assessments made by the township assessors; that this order was subsequently held, by the Indiana Supreme Court, to be void.

That thereafter, on July 31, 1920, the Indiana Legislature passed an act, in compliance with the provisions of which the state tax board adopted certain "conclusions" and certified the same to the Marion county board of review, which board of review thereupon, on August 13, 1920, ordered all assessments of real and personal property, other than those made directly by the state tax board, to be increased on property in Marion county in amounts varying from 20 per cent. to 50 per cent., depending on the nature of the property and the particular township in which it lay.

That taxes were levied and collected upon the basis of these increased assessments, but no increase was made of the assessments for the appellant's property or other property assessed directly by the state board.

That the statutes of Indiana, which provide for the refund of taxes wrongfully assessed, expressly state that no taxes shall be considered as having been wrongfully paid, or as having been wrongfully assessed, when same were extended on assessments made as the judgment of taxing officers authorized to make the same, and concerning which no complaints were registered at the time the same were made, either by application for rehearing or by an appeal; that such statutes only permit a refund of county and state taxes, and that a statute was passed in 1927 which purported to permit refund of city and township taxes theretofore collected, which statute is averred to violate the Fourteenth Amendment to the Constitution of the United States.

That the taxpayers whose assessments had been increased did not complain at the time, but voluntarily paid the taxes so levied on the basis of the increased assessments for the years 1919, 1920, and 1921; that such taxpayers did not register any complaints at the time said assessments were made, or when they were paid, either by application for rehearing or by an appeal.

That the appellees take the position that all the taxpayers whose assessments were increased by the county board's order of August 13, 1920, are entitled, because said order was made without notice to taxpayers, to a refund of the taxes paid by them in excess of the taxes they would have paid, had said order never been made, notwithstanding the fact that the 1920 statute expressly authorized the county board of review to make such increased assessments, and notwithstanding the fact that such taxpayers registered no complaints at the time said assessments were made, either by application for rehearing or by appeal; and that appellees have declared and announced their purpose to effect such refunds without regard to the statutory provisions mentioned, and will make such refunds, if not enjoined from so doing, without requiring from any claimant any proof that such claimant registered complaint of his assessment, either by application for rehearing or by appeal.

That the appellees have declared their purpose to levy taxes in 1927 and 1928, and in the following years, to raise moneys for the payment of such refunds; that all of the tax money collected for the...