Board of Commissioners of Boone County v. Adler
| Decision Date | 06 January 1922 |
| Docket Number | 10,943 |
| Parties | BOARD OF COMMISSIONERS OF BOONE COUNTY v. ADLER ET AL |
| Court | Indiana Appellate Court |
From Boone Circuit Court; Willett H. Parr, Judge.
Action by Phil H. Adler and others against the Board of Commissioners of Boone County. From a judgment for plaintiffs, the defendant appeals.
Reversed.
R. W Adney and Rogers & Smith, for appellant.
Meyers Gates & Ralston, for appellees.
The appellees instituted this action by filing their complaint in the circuit court to recover taxes paid to the treasurer of Boone county, which taxes are alleged to have been wrongfully assessed. The first paragraph of complaint is on the theory of debt; and the second paragraph seems to be on the theory of money had and received. The prayer of each paragraph is for a personal judgment for the amount alleged to have been paid, together with interest thereon. Demurrers having been overruled, the cause was tried to the court without a jury. The trial resulted in a general finding and judgment for the appellees. The errors assigned challenge the ruling of the court on each demurrer and on the motion for a new trial.
Taxation is a subject peculiarly within the province of the legislative department of our state government. Subject only to constitutional provisions, the legislature has the exclusive power to devise the plan of taxation; to prescribe the method by which property shall be listed and valued; to fix the rate for state purposes; to designate the manner in which, and the agencies by whom the rates shall be fixed for counties, townships, and municipal corporations; to designate the officers by whom, the time within which, and the manner in which, the taxes shall be collected; and to say who shall have the custody of the funds and how the funds shall be disbursed. The legislature also has power to provide how a citizen who has paid taxes which were unlawfully assessed against his property may be repaid from the fund.
It has often been said by the courts that in the absence of a legislative provision for repayment of taxes wrongfully assessed, the citizen has no remedy, if the taxes were paid voluntarily. Jackson Hill Coal, etc., Co. v. Board, etc. (1914), 181 Ind. 335, 104 N.E. 497; Leonard v. City of Indianapolis (1894), 9 Ind.App. 262, 36 N.E. 725. But, if the citizen were vigilant and brought a timely suit against the collecting officer, he might obtain relief by injunction. Greencastle Township, etc. v. Black (1854), 5 Ind. 557; Martin v. Stanfield (1861), 17 Ind. 336; Toledo, etc., R. Co. v. Lafayette (1864), 22 Ind. 262; English v. Smock (1870), 34 Ind. 115, 7 Am. Rep. 215; Shoemaker v. Board, etc. (1871), 36 Ind. 175; Sim v. Hurst (1873), 44 Ind. 579; City of Delphi v. Bowen (1878), 61 Ind. 29; Bishop v. Moorman (1884), 98 Ind. 1, 49 Am. Rep. 731; Smith v. Smith (1902), 159 Ind. 388, 65 N.E. 183.
Where taxes wrongfully assessed were collected by distress or paid under duress, what remedies were available to the citizen, in the absence of any statutory remedy? Originally he might maintain an action in tort against the assessing officer who exceeded his power in making the assessment. Bristol Mfg. Co. v. Gridley (1858), 27 Conn. 221, 71 Am. Dec. 56; Ware v. Percival (1873), 61 Me. 391, 14 Am. Rep. 565; Stetson v. Kempton (1816), 13 Mass. 272, 7 Am. Dec. 145; Henry v. Sargeant (1843), 13 N.H. 321, 40 Am. Dec. 146; Baker v. Freeman (1832), 9 Wend. (N. Y.) 38, 24 Am. Dec. 117; Drew v. Davis (1838), 10 Vt. 506, 33 Am. Dec. 213. About a century ago, however, the courts of several states held that he might waive the tort and maintain an action on the theory of money had and received. Bailey v. Town of Goshen (1865), 32 Conn. 546, 87 Am. Dec. 191. That action seems to have been allowable on the basis that the money so collected was held by the state, county, or municipality, as the case might be, as trustee for the citizen from whom it was collected. Shoemaker v. Board, etc., supra. Such an action could be maintained against the collecting officer, if instituted while he had the funds in his possession; but after he had distributed the funds according to law to the governmental units for which it was collected, separate actions had to be brought against the several governmental units into the treasuries of which the funds were paid on distribution. Atchison, etc., R. Co. v. O'Connor (1912), 223 U.S. 280, 32 S.Ct. 216, 56 L.Ed. 436, Ann. Cas. 1913C 1050; Owen County Fiscal Ct. v. F. & A. Cox Co. (1909), 132 Ky. 738, 117 S.W. 296, 21 L.R.A. (N. S.) 83 and note; Benson v. Monroe (1851), 7 Cush. (Mass.) 125, 54 Am. Dec. 716; Cox v. Welcher (1888), 68 Mich. 263, 36 N.W. 69, 13 Am. St. 339 and note; Scottish Union, etc., Ins. Co. v. Herriott (1899), 109 Iowa 606, 80 N.W. 665, 77 Am. St. 548; Greenabaum v. King (1868), 4 Kan. 332, 96 Am. Dec. 172. To recover from a city or town he had to bring his action against the municipality. It seems, however, that in this state the right to recover from a municipality has been regarded as resting upon the statutes. Simonson v. Town of West Harrison (1892), 5 Ind.App. 459, 32 N.E. 585; City of Indianapolis v. McAvoy (1882), 86 Ind. 587; McWhinney v. City of Indianapolis (1885), 101 Ind. 150. To recover the portion collected for a township, he had to bring his action against the township. Mills v. Board, etc. (1875), 50 Ind. 436; Cleveland, etc., R. Co. v. Board, etc. (1898), 19 Ind.App. 58, 49 N.E. 51; DuBois v. Board, etc. (1894), 10 Ind.App. 347, 37 N.E. 1056; Cincinnati, etc., R. Co. v. Wayne Township (1913), 55 Ind.App. 533, 102 N.E. 865. As to the portion collected for the state, he had no remedy; for a state may not be sued without legislative permission. Shoemaker v. Board, etc., supra. See also Eleventh Amendment, Constitution of United States.
Even under our statute, taxes wrongfully assessed which are collected by the county treasurer on behalf of a township or a municipality cannot be refunded by the county where the claim is not filed before distribution. DuBois v. Board, etc., supra. Cleveland, etc., R. Co. v. Board, etc., supra.
At the commencement of this action the following statute was in force:
"That in all cases where any person or persons or body politic or corporate shall appear before the board of commissioners of any county in this state, and establish by proper proof, that such person or body politic or corporate has at any time paid for any year or part thereof any amount of taxes which were wrongfully assessed against such person or body politic or corporate in such county, it shall be the duty of said board to order the amount so proved to have been paid, to be refunded to said payer from the county treasury, so far as the same was assessed and paid for county taxes, and the county auditor shall draw his warrant therefor and the county treasurer shall pay the same out of any money not otherwise appropriated." § 6090a Burns 1914, Acts 1909 p. 156.
Is the remedy provided by the statute exclusive? The rule is that where the legislature creates a right and prescribes a remedy, or method whereby the right may be enforced, the statutory remedy is exclusive. Victory v. Fitzpatrick (1856), 8 Ind. 281; McCormack v. Terre Haute, etc., R. Co. (1857), 9 Ind. 283; Board, etc. v. Murphy (1885), 100 Ind. 570; Ryan v. Ray (1886), 105 Ind. 101, 4 N.E. 214; New York, etc., R. Co. v. Zumbaugh (1894), 12 Ind.App. 272, 39 N.E. 1058; Boyd, Admr., v. Brazil, etc., Co. (1898), 25 Ind.App. 157, 57 N.E. 732; Wehmeier v. Mercantile, etc., Co. (1912), 49 Ind.App. 454, 97 N.E. 558; Carlisle v. Missouri P. R. Co. (1902), 168 Mo. 652, 68 S.W. 898; Snyder v. Marks (1883), 109 U.S. 189, 3 S.Ct. 157, 27 L.Ed. 901.
The case at bar is within that rule. The legislative purpose was to furnish a simple, direct and inexpensive method by which a citizen may recover taxes wrongfully assessed, whether paid voluntarily or involuntarily; and no court proceeding is contemplated, except by appeal. Shoemaker v. Board, etc., supra.
The legislature has the primary right to provide how public funds, having once reached the treasury, shall be paid out to require that proof shall be made of the genuineness of the amount of each claim against the funds; and to designate the tribunal which, in the first instance, shall pass upon the proof and allow or disallow a claim. The legislative trust and confidence, in that regard, has been reposed in the board of commissioners. It has been held that the board is an administrative body and also a court; and that when hearing the proof and determining the validity of a claim, the board is acting as a court, and that the commissioners are then sitting as judges. State v. Board, etc. (1878), 63 Ind. 497; Holliday v. Henderson (1879), 67 Ind. 103. See, also, State v. Board, etc. (1874), 45 Ind. 501; Weston v. Lumley (1870), 33 Ind. 486; Board, etc. v. Gregory (1873), 42 Ind. 32; Curry v. Miller (1873), 42 Ind. 320; Board, etc. v. Markle (1874), 46 Ind. 96; Board, etc. v. Bradley (1876), 53 Ind. 422; Board, etc. v. Binford (1880), 70 Ind. 208; Hume v. Little Flat Rock, etc. (1880), 72 Ind. 499; Million v. Board, etc. (1883), 89 Ind. 5; State v. Board, etc. (1885), 101 Ind. 69; Board, etc. v. Heaston (1896), 144 Ind. 583, 14 N.E. 457, 43 N.E. 651, 55 Am. St. 192; Jay v. O'Donnell (1912), 178 Ind. 282, 98 N.E. 349, Ann. Cas. 1915C 325. Whatever may be our opinion as to the wisdom of that holding, we must recognize the status and character of the board as thus fixed and determined. The legislature might have authorized the circuit court to act as a court of claims for the purpose of originally hearing and determining all claims for the repayment of taxes wrongfully assessed. Had that been done, would anyone...
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