Bell v. Meeker

• Decision Date: 03 October 1906
• Docket Number: 5,496
• Citation: 78 N.E. 641,39 Ind.App. 224
• Parties: BELL, AUDITOR, ET AL. v. MEEKER ET AL
• Court: Indiana Appellate Court

78 N.E. 641

39 Ind.App. 224

BELL, AUDITOR, ET AL. v. MEEKER ET AL

No. 5,496

Court of Appeals of Indiana

October 3, 1906

Rehearing denied December 18, 1906.

From Fountain Circuit Court, Joseph M. Rabb, Judge.

Suit by Theodore M. Meeker and others against James T. Bell, as county auditor of Fountain county, and an other. From a decree for plaintiffs, defendants appeal.

Affirmed.

Charles W. Miller, Attorney-General, O. B. Ratcliff, Prosecuting Attorney, C. C. Hadley, L. G. Rothschild, W. C. Geake and O P. Lewis, for appellants.

Charles R. Milford, Benjamin Crane, Charles M. McCabe and Lucas Nebeker, for appellees.

OPINION

ROBINSON, C. J.

At its meeting in 1903, the State Board of Tax Commissioners entered an order concerning the assessment of the real and personal property of each county in the State, which order, omitting such parts as relate to counties other than Fountain county was as follows:

"It is hereby ordered by the State Board of Tax Commissioners of the State of Indiana, after a full and fair consideration of the question of the values of the real estate and improvements thereon within the State of Indiana, that said real estate and the improvements thereon be equalized by changing and modifying the assessments as returned to this board by the several county boards of review, as follows: Fountain county. Average value per acre of lands as returned by the county boards, $ 25.58. Average value per acre of lands and improvements as returned by the county board, $ 28.41' Action of the State Board of Tax Commissioners in increasing or decreasing the assessments as returned by county boards of review: Land as returned, fifty per cent increase on improvements and five per cent increase on lots and improvements in Attica and Covington. *

This order was duly certified to the Auditor of State, and the increased valuation so ordered as to Fountain county duly placed upon the tax duplicate of that county. Appellees, owners of lands with improvements thereon outside of cities and towns, sue to enjoin the collection of so much of the taxes assessed against them as is made up of this increased assessment made by the State Board of Tax Commissioners. A demurrer to appellees' complaint was overruled, and, appellants declining to plead further, a decree was entered in appellees' favor enjoining appellants, auditor and treasurer, from collecting or attempting to collect any tax based upon such increased assessment.

The question presented is whether the State Board of Tax Commissioners has authority, in equalizing assessments, to act upon a classification made by the board as indicated in the above order.

As the suit is brought to enjoin only that part of the taxes that is claimed to be invalid, equity does not require that such taxes as are not sought to be enjoined should be paid before bringing suit. The pleading proceeds upon the theory that the whole of the fifty per cent increase on improvements on lands, made by the state board, is void. This assessment, so made by the board, is, as an entirety, claimed to be void. In Yocum v. First Nat. Bank (1896), 144 Ind. 272, 43 N.E. 231, a county board of review increased the assessment of a bank's capital stock, and suit was brought to enjoin the collection of taxes on this increased assessment on the ground that the board's order was void. In that case the court said: "If the complaint were to enjoin the collection of taxes, part of which were legal and part illegal, the complainant would be required to pay or tender payment of the legal part, and this averment would be necessary before injunctive relief would be granted; but that is not this case, nor is this case within the principle or rule which requires such averment to be made. This action is to set aside and annul a particular order alleged to be void, whereby a specific sum, to wit, $ 16,000, it is averred was illegally added to the assessed value of appellee's property." See Board, etc., v. Gruver (1888), 115 Ind. 224; Hyland v. Brazil Block Coal Co. (1891), 128 Ind. 335, 26 N.E. 672.

Section 8551 Burns 1901, Acts 1901, p. 44, § 3, provides: "It shall be the duty of the said board to examine the abstracts of all the real and personal property assessed for taxation in the several counties of this State as returned to the Auditor of State, and to equalize the assessments as hereinafter provided; but said board shall not reduce the aggregate assessed valuation below the true cash value, as defined in this act." Section 8552 Burns 1901, Acts 1901, p. 44, § 4, provides that for the purpose of properly equalizing the valuations of real and personal property and railroad property the county auditors shall transmit to the state auditor an abstract of the assessment of property "showing the number, value and average value of each class or kind of enumerated property, as shown by the assessment, the value of each item of unenumerated property, and total value of personal property, the value of all land in each civil township without improvements, the value of all improvements thereon, and the value of such land with improvements, and, in like order, all city or town inlots, and outlots, showing the value of such lots without improvements, the value of improvements, and the value of such lots with improvements," also main and side-tracks and value of railroad property. "Such abstract shall be arranged in such manner as to show by civil townships the number of acres, value, and average value of improved lands, and in like manner the number of acres, value, and average value of unimproved lands, total number of acres, total value and average value per acre of all lands, the number and value and average value of improved town or city lots, the number, value and average value of unimproved town or city lots, the total number of lots, total value and average value of all lots and the total value of all property real and personal." The value given in this abstract shall be the assessed valuation except in case of railroad property. Section 8553 Burns 1901, Acts 1901, p. 44, § 5, is as follows: "Said board, in equalizing the valuation of property as listed and assessed in the different counties, shall consider the following classes of property separately, viz.: Railroad property, lands, town and city lots and personal property, and upon such consideration determine such rates of addition to, or deduction from the listed or assessed valuation of each of said classes of property in each county, or to or from the aggregate assessed value of each of said classes in the State, as may be deemed by the board to be equitable and just; such rates being in all cases even, and not fractional, and such rates as finally determined by said board shall not be combined." It is provided by § 8554 Burns 1901, Acts 1901, p. 44, § 6: "Counties shall be equalized by adding to the aggregate value of the lands, town and city lots and personal property, in every county in which said board may believe the valuation to be too low, such rate per centum as will raise the same to its proper proportionate value, and by deducting from the aggregate assessed value thereof, in every county in which said board may believe the valuation to be too high, such per centum as will reduce the same to its proper value, as defined in this act." Section 8555 Burns 1901, Acts 1891, p. 199, § 137, makes it the duty of the board to assess railroad property. Section 8556 Burns 1901, Acts 1891, p. 199, § 138, provides for tabulating the results. Section 8557 Burns 1901, Acts 1891, p. 199, § 139, provides for certifying to the state auditor and he in turn to the county auditors. Section 8558 Burns 1901, Acts 1891, p. 199, § 140, provides for the extension of the rates by the county auditors.

Section 8551, supra, makes it the duty of the board to equalize the assessments of property for taxation as "hereinafter provided." Section 8553, supra, expressly requires that in equalizing the valuation of property the board "shall consider the following classes of property separately, viz.: Railroad property, lands, town and city lots and personal property, and upon such consideration" determine such rates of increase or decrease in each class as should be made, and that such rates "shall not be combined." This classification is retained in a subsequent section, and "when said board (§ 8556, supra) shall have separately considered the several classes of property as hereinbefore required" the results shall be tabulated, "preserving, however, the principle of separate rates for each class of property;" and said board "shall certify (§ 8557, supra) to the Auditor of State the rates finally determined by the board, to be added or deducted from the listed or assessed valuation of each class of property in the several counties." The above provisions are plain and explicit and clearly show that the legislature intended that whatever increase or decrease the state board should make in the assessment, as returned by the local officers, should be made by percentages and upon classes of property. Not only does the statute require that each class shall be considered separately, but also that the rates of increase or decrease on these several classes shall not be combined. The board is to have nothing to do with individual assessments, except by appeal, and by §§ 8553, 8554, supra, it is clear that the legislature intended that the board should act upon certain classes only. These two sections need no construction. The classes of property are expressly indicated.

The abstracts of assessments required by § 8552 supra, so far as real estate of the character here in question is concerned, must show "the value of all land in each civil township without improvements, the value of all...