Applegate v. State ex rel. Bowling

• Decision Date: 26 February 1902
• Citation: 158 Ind. 119,63 N.E. 16
• Parties: APPLEGATE v. STATE ex rel. BOWLING, Assessor.
• Court: Indiana Supreme Court

158 Ind. 119

63 N.E. 16

APPLEGATE

v.STATE ex rel. BOWLING, Assessor.

Supreme Court of Indiana.

Feb. 26, 1902.

Appeal from circuit court, Harrison county; C. W. Cook, Judge.

Mandamus by the state on relation of Daniel J. Bowling, assessor, against George W. Applegate. Writ granted, and defendant appeals. Reversed.George W. Self, Major W. Funk, William Ridley, and John G. Williams, for appellant. W. T. Zenor, C. C. Jordan, and R. D. Kirkham, for appellee.

GILLETT, J.

This action is a proceeding in mandamus instituted in the court below against appellant and others by appellee's relator, who was, at the time of the commencement of this action, and during its continuance in the court below, the county assessor of Harrison county, Ind. The judgment ordering the peremptory writ to issue was awarded only as against George W. Applegate, and he is therefore the sole appellant. The petition for the alternative writ sufficiently alleges the official capacity of the relator at the time the action was commenced and for more than two years immediately prior thereto. Relator further alleges in his petition that appellant and the other former defendants hereto were, at the time of the commencement of this action, and for more than three years then last past had been, conducting a general banking business, as partners, in said county; that the appellant was the president of said banking firm; that on the 1st day of April, 1898, and on the 1st day of April, 1899, said firm had and held on deposit in its bank as aforesaid sums of money in excess of $130,000 belonging to divers citizens and taxpayers of said county, but that the particular amount of each deposit was unknown to the relator; that said firm keeps a record in its office of the names of each of said depositors and of the amounts of their respective deposits; that the appellant, as said president, was the custodian of said record. The petition then proceeds as follows: “Your relator further avers: That under the law of the state of Indiana, as such county assessor, in his official capacity he is required, for the purpose of properly listing and assessing property for taxation and equalizing and collecting the taxes due thereon, to have an inspection and examination of the records of all public officers and the books and papers of all corporations and taxpayers of this state, for the purpose of obtaining information to enable him to properly discharge his duties as such officer, and to give such information as he may acquire in reference to the concealment of property from taxation by any person or corporation contemplated in the law to the county auditor, auditor of state, and to the boards of review or tax commissioners. That in the absence of an inspection and examination of the books and papers of the defendant banking partnership he is without the means of acquiring accurate and reliable data and information respecting the names and amounts of the various and divers persons and taxpayers who were and are depositors in the defendant's bank on the 1st day of April, 1898, and the 1st day of April 1899, and is therefore unable to perform his official duties without an inspection and examination of said books and papers. That with a view to the discharge of his official duties, and in pursuance with the requirements of law in that behalf made and provided, he did, on the 6th day of September, 1899, at the office of said banking partnership, and during business and banking hours, request and demand of George W. Applegate, the chief officer and president of said banking firm, and in the possession and control of said books, the right and privilege of an inspection and examination of the books and papers of said banking partnership at such time as might be most convenient to said bank and the officers thereof, for the purpose of obtaining information to enable him to properly list and assess the moneys of depositors had and held by them on the 1st day of April of the years 1898 and 1899, for taxation, and equalizing and collecting the taxes due thereon, as provided by law. That said banking partnership, by and through its chief officer and president, declined, refused, and objected to granting such right, inspection, and examination, and wholly refused to permit your relator, as such assessor, in his official capacity, to see, inspect, or examine such books and papers at that or any other time. Wherefore your relator says that by reason of the illegal and wrongful conduct of said defendant banking partnership he has been deprived of the information and knowledge which he deems essential to a proper discharge of his official duties, and he therefore prays the court for the issuance of an alternative writ of mandate against said defendant banking partnership to compel said defendants to permit said relator to have such inspection and examination of the books and papers of said firm as the law enjoins, or to show cause why it shall not do so.” Upon the filing of this petition an alternative writ of mandate was issued, directed to the defendants below, by order of said court. By leave of court an amended alternative writ of mandate was subsequently issued, directed to said defendants. Said amended writ, aside from the caption and title, is as follows: “Whereas, Daniel J. Bowling, the relator in the above-entitled cause, has filed in this court his sworn complaint alleging his demand and your refusal to grant him, as such county assessor, the right to inspect and examine such books and papers of said bank as is essential and necessary to enable him to ascertain the names of depositors and the amounts of their deposits in said bank on the 1st day of...