Bloomfield Democrat, Inc. v. Board of Commissioners of Greene County
| Decision Date | 17 October 1931 |
| Docket Number | 14,156 |
| Citation | 177 N.E. 361,93 Ind.App. 226 |
| Parties | BLOOMFIELD DEMOCRAT, INCORPORATED, v. BOARD OF COMMISSIONERS OF GREENE COUNTY ET AL |
| Court | Indiana Appellate Court |
From Greene Circuit Court; Thomas VanBuskirk, Judge.
Suit by the Bloomfield Democrat, Incorporated, against the Board of Commissioners of Greene County and others to enjoin the publication of a notice of a delinquent-tax sale. From a judgment in favor of defendants on their demurrer to the complaint, the plaintiff appealed.
Reversed.
Regester & Regester and Jesse F. Weisman, for appellant.
Will R Vosloh and Webster V. Moffett, for appellees.
On January 25, 1930, the appellant filed its complaint in the court below, praying for injunctive relief against the defendants. The essential facts alleged were: That appellant was a corporation organized under the laws of the State of Indiana; that it was a resident taxpayer of Greene County, in said state, engaged in the publication of a Democratic newspaper, in the town of Bloomfield; that defendant Pulliam Publishing Corporation was a corporation organized and doing business in the State of Indiana, and engaged in the publication of the Linton Daily Citizen, a newspaper of nonpolitical belief and without political affiliations; that defendant George R. Hudson was auditor of said county, and, as such officer, it was his duty to prepare and publish in two newspapers of opposite political faith in Greene County, a list of the lands returned as delinquent for taxes and for sale, for three consecutive weeks, before the sale of such lands, upon the second Monday in February, 1930; that he had caused said delinquent tax list to be published in the Bloomfield News, a Republican newspaper; that he, as such auditor, caused said delinquent tax list to be published in the Linton Daily Citizen, which is not a Democratic newspaper; that the publication of said list as aforesaid is in violation of law, and would invalidate the title to the property to be sold; that the notices thus published would not be such notice as required by law, and would be invalid, null and void; that, by reason of said facts, there could be no legal and proper sale of the lands and lots at said time and that great and irreparable injury would result to the taxpayers of the county; that defendant Henry Rollison was the treasurer of Greene County that the Pulliam Publishing Corporation would, after the publication of such notices, file a claim for its services with the county auditor, which claim would later be allowed and ordered paid by the board of county commissioners, and would be paid out of the public funds unless said officers were restrained; that said claim would be illegal and void.
Wherefore appellant asked for an order restraining the Pulliam Publishing Corporation from publishing said list; that the board of county commissioners be restrained from allowing any claim for such services; that the county auditor be restrained from issuing a warrant, and the county treasurer be restrained from paying same; that, upon final hearing, said order be made perpetual, and that said auditor be compelled to publish said delinquent tax list in a Democratic newspaper.
To this complaint, the defendant filed a demurrer for want of facts, assigning six separate causes: (1) That there were not sufficient allegations that the Linton Daily Citizen was not a Democratic newspaper; (2) that the complaint showed that the list had already been published; (3) that the board of commissioners could not be restrained from allowing a claim, for the reason that the appellant had relief by appeal from such an order; (4) that the auditor and treasurer could not be restrained from drawing and paying a warrant, for the reason that there was no allegation that they would do so unless the board of commissioners so ordered; (5) that the complaint was insufficient, for the reason that, at the time it was filed, it was too late for the auditor to publish the list the number of times required by law; (6) that, at the time the suit was filed, the court could not make an order granting the relief prayed for with reference to the publishing of the tax list in a Democratic newspaper.
This demurrer was sustained, appellant refused to plead further, judgment was rendered against it, therefore, this appeal. Appellant assigns as error the sustaining of appellees' demurrer to appellant's complaint.
The county auditor is a ministerial officer, § 159 Burns 1926. It follows, therefore, that he can exercise only such powers as are conferred upon him by the Constitution or statutes of the state. In the absence of any such authority, he cannot exercise any executive, legislative or judicial functions. Chicago v. Seben (1897), 165 Ill. 371, 46 N.E. 244, 56 Am. St. 245; 46 C. J. 927; 22 R. C. L. §§ 25, 26, pp. 391, 392.
Section 14300 Burns 1926, Acts 1919 p. 198, provides, among other things, that the county auditor "shall make out and record, in a book to be provided for that purpose, a list of lands and lots returned and remaining delinquent for taxes," etc. Section 14301 Burns 1926, Acts 1919 p. 198, provides that: "The auditor . . . shall have such list printed in two newspapers of opposite political parties of the county for three consecutive weeks before such sale." Section 12080 Burns Supp. 1929, Acts 1927 p. 252, also provides that: "In all cases where county, township, city, town and school officials are required by law to publish notices, ordinances and reports affecting county, township, city, town and school business, respectively, such officials are hereby required to publish said notices, ordinances and reports in two newspapers representing the two political parties casting the highest number of votes at the last preceding election published in said county, township, city or town." (Our italics.)
In the first two sections of the statute above referred to, the Legislature was engaged in establishing a method to be pursued in the exercise of one of the most important functions of government, namely, the collection of delinquent taxes, so, in order to eliminate any uncertainty on the part of the county auditor as to the method to be pursued, the Legislature expressed itself in plain, unequivocal language. Then, as a further manifestation of its intention, in the following year and in 1927, it again provided in mandatory language the method of publishing notices having to do with the public business. In each instance, the language used is concise and explicit. That it is beyond the realm of construction or interpretation is self evident; its meaning is plain. As these statutes are written, the auditor has no choice in the character of papers in which the notice of sale of lands and lots for delinquent taxes shall be published. If he is not sure of their political affiliation, then it is his duty, before authorizing publication of the notice in any newspaper, to first determine whether such newspaper meets with the statutory requirements. It is only after such investigation, and becoming satisfied that there are no newspapers published in his county representing the two political parties as provided in the statute, that he is authorized or empowered to place the publication of the notice in any other newspaper.
The filing of the demurrer for the purpose of testing the sufficiency of the complaint admits the truth of all facts well pleaded. Webster v. Adams (1923), 79 Ind.App. 261, 137 N.E. 883; Greathouse v. Board, etc. (1926), 198 Ind. 95, 151 N.E. 411.
The levying, collection and expenditure of taxes is the most important function of government. It is one of the necessary powers inherent in government; without its orderly operation, the government cannot exist. It affects every taxpayer, and he has the right to insist that the officers upon whom devolves the duty of exercising this power do so in strict compliance with the law, outlining the various steps to be taken in its accomplishment.
From the allegations of the complaint, it appears that the county auditor was causing notices of the tax sale to be published in open and defiant violation of explicit statutory provisions directing the method and manner of publishing such notices, thereby injecting into the proceedings an element of uncertainty that might be far reaching and disastrous in its results. Here taxes are being collected by a sale of the taxpayers' lands; bidders are being solicited for the purpose of realizing the amount due as delinquent taxes. Unless redeemed from sale, deeds are ultimately to be executed and delivered to the respective purchasers of the different tracts of real estate. The failure to...
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