Board of Commissioners of Marion County v. The Marion Trust Co.

• Decision Date: 09 December 1902
• Docket Number: 4,628
• Parties: BOARD OF COMMISSIONERS OF MARION COUNTY v. THE MARION TRUST COMPANY, RECEIVER
• Court: Indiana Appellate Court

65 N.E. 589

30 Ind.App. 137

BOARD OF COMMISSIONERS OF MARION COUNTY v. THE MARION TRUST COMPANY, RECEIVER

No. 4,628

Court of Appeals of Indiana

December 9, 1902

From Marion Circuit Court; H. C. Allen, Judge.

Action by the Marion Trust Company, as receiver of the Washington Savings & Loan Association, against the board of commissioners of Marion county to recover taxes claimed to have been erroneously assessed. From a judgment for plaintiff, defendant appeals.

Reversed.

M. M Hugg, for appellant.

J. W Noel, for appellee.

OPINION

WILEY, J.

Upon the decision of this cause depends the settlement of a trust and upon petition it was advanced. A brief statement of the facts shown by the record will serve to disclose the nature of the action and the only question involved. The Washington Savings & Loan Association was organized under the laws of Indiana to do a general building and loan business. It became insolvent, and appellee was appointed receiver to wind up its affairs. As such receiver, appellee had charge of the assets of the said association, and in the year 1900 listed such assets for taxation at $ 27,900. Appellee, as such receiver, voluntarily paid to the treasurer of Marion county all the taxes assessed thereon, amounting to $ 535.68. After the payment of such taxes, appellee filed a claim before the board of commissioners to have refunded to it the taxes paid, alleging in its verified claim that it had erroneously listed said assets for taxation, and that such taxes were erroneously and wrongfully paid. The board of commissioners refused to allow the claim, or any part of it, and the trust company appealed to the court below, where a judgment was rendered against the county for $ 104.16. Appellant's motion for a new trial was overruled, and this is the only error assigned. Appellant's motion for a new trial was based upon four grounds, but which may properly be embraced in two, viz., that the finding of the court is not sustained by sufficient evidence, and is contrary to law.

The evidence is without conflict, and shows that on April 1, 1900, appellee, as receiver, had on hands assets of the association of the value of $ 27,900. The statement in the assessment list as made out and returned to the taxing officers by appellee is as follows: "Money on hand, or on deposit with banks, trust companies, corporations, firms, or individuals, or subject to my order, check, or draft, including circulating notes of national banking associations, and United States legal tender notes, and other notes and certificates of the United States, payable on demand, and circulating, or intended to circulate, as currency, and gold, silver, or other coin, $ 27,900." It is also shown that the trust company believed it to be its duty to list the assets of the association for taxation, and was not otherwise advised until June, 1901. It was agreed that of the amount paid by appellee to the treasurer for taxes, $ 104.16, was due to Marion county. It was also shown that the association was insolvent, and that appellee made a demand upon the county to have refunded to it the taxes so paid.

The single question for decision is this: Is a receiver of an insolvent building and loan association required to list the assets of the association in its hands for taxation, and pay taxes thereon? The decision of the question depends upon the construction of two statutes. These statutes are as follows: "For the purpose of this act, paid-up stock shall be such stock as the owner shall have paid the full face value thereof at the time of the subscription therefor. Prepaid stock shall be stock upon which the owner shall have paid any specific sum in advance at the time of subscription, leaving the balance necessary to mature the same to be paid by the dividends to be declared thereon by the association, or stock on which more than six months' dues have been paid in advance. All building and loan associations, as such, shall be exempt from taxation. Shares of stock on which loans have not been made or advanced by the association, which stock is paid-up or prepaid, shall be considered and held as credits of the members, individually and listed by them, and assessed against them for taxation as other property." Acts 1897, p. 284, § 4463d Burns 1901. "All personal property shall be assessed to the owner in the township, town or city of which he is an inhabitant on the 1st day of April, of the year for which the assessment is made, with the following exceptions: * * * Tenth. Personal property in the possession of any person or corporation as trustee, receiver, executor, administrator or guardian shall be assessed for State and county purposes in the county where the court is situated by which such trustee, receiver, executor, administrator or guardian was appointed or to which such trustee, receiver, executor, administrator or guardian reports." § 8421 Burns 1901, Acts 1897, p. 250. These two statutes were passed by the legislature in 1897, and approved by the Governor the same day. The one last quoted had an emergency clause and went into effect at once, while the former did not go into effect until July 1, 1897, and then by specific enactment. Section 8421, supra, was an amendment of a former statute, and it relates to the taxation of personal property generally. Section 4463d, supra, is a part of an act concerning building and loan associations.

The two sections apparently are not in harmony, and, if we are to take the language used literally, the two can not be harmonized or stand together. But these two statutes being passed by the same session of the legislature are to be taken in part materia, and to receive a construction that will give effect to each if possible. State v Rackley, 2 Blackf. 249; Indiana Cent. Canal Co. v. State, 53 Ind. 575; Wright v. Board, etc., 82 Ind. 335; Shea v. City of Muncie, 148 Ind. 14, 46 N.E. 138. Here we have two statutes relating to taxation, and if they can stand together it is the duty of the court to uphold them, and they should be construed in pari materia. City of Madison v. Smith, 83 Ind. 502; Jeffersonville, etc., R. Co. v. Dunlap, 112 Ind. 93. Section 4463d, supra, expressly exempts building and loan associations, "as such," from taxation, while § 8421, supra, places the burden of taxation upon personal property in the possession of any person or corporation as trustee, receiver, etc. The assessment list returned by appellant, as receiver, contains but one item, and that is "Money on hand or on deposit," and shows that the amount is $ 27,900. Section 8458 Burns 1901, makes it the duty of a receiver to return to the assessor a full and complete...