Board of Comrs of Marion County v. Millikan

Decision Date04 May 1934
Docket Number26111-26117
PartiesBOARD OF COMRS OF MARION COUNTY v. MILLIKAN, and six other cases
CourtIndiana Supreme Court

[Rehearing denied October 8, 1934.] Also No. 26,112. BOARD, ETC v. STANFORD; No. 26,113. BOARD, ETC. v. COFFIN; No. 26,114. BOARD, ETC. v. BROSNAN ET AL.; No. 26,115. BOARD, ETC. v. MUNTER; No. 26,116. BOARD, ETC. v. UNION TRUST COMPANY OF INDIANAPOLIS TRUSTEE; No. 26,117. BOARD, ETC. v. VAN SICKLE ET AL.

1. TAXATION---Refund of Taxes Paid---Voluntary or Involuntary Payment Immaterial.---The right to a refund of taxes under Acts 1919, p. 198, 332, does not depend upon whether the taxes were paid voluntarily or involuntarily. p. 149.

2. TAXATION---Refund of Taxes Paid---Statutory Remedy Exclusive.---Statutory method from recovery of taxes wrongfully paid, held exclusive remedy. p. 149.

3. ACTIONS---Enforcement of Statutory Right---Necessity for Compliance with Terms of Statute.---One who founds a right of action on a statute must make a case within its terms. p 149.

4. TAXATION---Refund of Taxes Paid---Legislative Power to Limit Conditions.---Legislature's power to grant refund of taxes wrongfully paid includes power to prescribe limitations and conditions upon which the refund may be had. p. 149.

5. CONSTITUTIONAL LAW---Judicial Powers---Encroachment on Legislature.---Where subject is exclusively legislative the courts cannot inquire whether the legislature has acted wisely or unwisely. p. 150.

6. STATUTES---Construction---Provisos.---Statutes must be construed as a whole, including all provisos. p. 150.

7 STATUTES---Construction---Provisos.---The office of a proviso is not to enlarge or extend an act, or the section of which it is a part, but rather to limit and qualify the language used. p. 150.

8. TAXATION---Refund of Taxes Paid---1919 Refund Statute---"Wrongfully Assessed."---332, ch. 59, Acts 1919, providing for refund of taxes "wrongfully assessed," is limited by the last proviso of that section to exclude taxes extended on assessments made as the judgment of authorized taxing officers and concerning which no complaints were timely made either by application for rehearing or by an appeal. p. 150.

9. TAXATION---Refund of Taxes Paid---1919 Refund Statute---Proviso.---The last proviso of 332, ch. 59, Acts 1919, limiting taxes "wrongfully assessed" which may be recovered thereunder,

Ewbank & Dowden and Joseph J. Daniels, all of Indianapolis, for appellant.

William Bosson, of Indianapolis, Omer S. Jackson, of Greenfield, and Thompson, Rabb & Stevenson, of Indianapolis, for appellees.


ROLL, Chief Justice.

Each of the appellees in the above-named cases, in June, 1928, filed their separate claims with the auditor of Marion county for refund of certain taxes paid in 1920, 1921, 1922.

The original claims filed with the county auditor were verified bills for designated totals in sums paid by the claimant on additional valuations alleged to be unlawful, without indicating whether all was paid as state, county, township, school township, city or school city taxes, or on any other account. Afterwards, upon order of court that the complaints be made more specific, each claimant filed an amended and supplemental claim or complaint, of which each was almost an exact copy of the others, except as to dates, figures indicating the valuation of different properties listed for taxation purposes by the township assessor, and figures indicating the amount alleged to have been paid at the various tax paying times of each of the years here in question and such other changes as were necessary to make each claim apply to the particular facts in that case.

To these several claims appellant filed a demurrer which the court overruled. Appellant then filed answer in six paragraphs, to which appellees replied by a general denial. The court upon request found the facts specially and stated five conclusions of law thereon, to which appellant excepted to the first, second, third, and fifth and appellees excepted to the fourth.

Appellant's motion for a new trial was overruled and also its motion to modify the judgment.

Error is predicated upon the overruling of the appellant's demurrer; the alleged erroneous statement of the first, second, and third conclusions of law; the overruling of its motion for a new trial; and the overruling of its motion to modify the judgment.

The appellees assigned cross-errors, based upon the alleged erroneous statement of the fourth conclusion of law.

The claim of the respective claimants grew out of the following facts, all of which are disclosed by the special finding of facts: That on or prior to July 20, 1919, the auditor of Marion county made out and transmitted to the state board of tax commissioners an abstract of the assessment of property, the value of which has been fixed by the various township assessors and other taxing officials as required by section 191, Acts 1919, p. 198, c. 59, section 14231, Burns' Ann. St. 1926. On August 23, 1919, the state board of tax commissioners, at its third extended sesion ordered a horizontal increase in various townships, including Center township and the city of Indianapolis in Marion county, in varying precincts, which order directed the county auditor to extend the increased valuation on the tax duplicates. After said order of the state tax commissioners was made (on August 23, 1919), and after the tax duplicates had been made out and delivered to the treasurer, a certain taxpayer brought an action for himself and on behalf of all taxpayers of the city of Indianapolis, Center township, Marion county, Ind., in which action the court entered a decree enjoining the county auditor from delivering to the treasurer any tax duplicate (then already delivered) for the collection of taxes for 1919, due and payable in 1920, upon any property in said city, upon a valuation for taxation of property as increased by said order of the state tax commission; and also enjoining the treasurer from collecting taxes based on such increase; and this judgment was never set aside nor appealed from. Like suits were brought and like judgments obtained by taxpayers other than these appellees in other townships in Marion county. An appeal was taken from another judgment of like effect recovered by a taxpayer of another township, and pending that appeal (the tax duplicates having been already prepared and in the hands of the treasurer of Marion county, and the spring installment being less than the total tax for the year without reference to the increase ordered by the state board of tax commission), the county treasurer caused to be impressed with a rubber stamp on the tax receipts issued by him to appellees and others a statement that: So much of this tax as is based upon the State Tax Commissions' horizontal increase in assessment being paid under protest will be credited on the second installment, payable in November, 1920, if that increase shall be finally held invalid.'

Appellees and others paid the full amount of taxes due upon their property in the spring of 1920, the valuation of which had been increased by the horizontal raise ordered by the state tax board, and before they became due.

The horizontal increase as ordered by the state tax board of August 23, 1919, was held invalid by this court in the case of Fesler, Auditor, et al. v. Basson et al. (July 7, 1920) 189 Ind. 484, 128 N.E. 145, upon the ground that the state tax board did not have authority at its third extended session (being the session at which the horizontal increase was ordered) to make a horizontal increase or adjustments as between townships.

Immediately after this case was decided, the Legislature of Indiana met in special session and passed what is known as the Tuthill-Kiper Act. Acts Sp. Sess. 1920, p. 153, c. 45. Sections 1 and 2 of said act are set out in the opinion of this court in Bosson v. Lemcke, Treas. (1922) 192 Ind. 668, 137 N.E. 551, and we need not set them out here. But, pursuant to that act, the state tax board met on July 31, 1920, and reviewed its orders made August 23, 1919, as respects the horizontal raise previously made by them on said date, and certified said order to the Marion county board of review. The Marion county board of review met on August 6, and again on August 13, 1920, as directed by the provisions of the Tuthill-Kiper Act, supra, and on said dates made the horizontal increase in the various townships and in the same amounts that the state board of tax commissioners made in its order of August 23, 1919, and as the order which said board had certified on July 31, 1920, stated. This horizontal increase, being the same in all respects, did not necessitate any change in the figures of the tax duplicate which had been theretofore prepared, and the amount of the fall installment of 1920 was the same as the spring installment.

Appellees paid the fall installment of taxes without any objections, also the spring and fall taxes in 1921, as well as the taxes due and payable in 1922. A suit to enjoin the county treasurer, county auditor, and others from entering on the tax duplicate and collecting a tax resulting from the last horizontal increase was commenced by a taxpayer of Washington township. The lower court refused an injunction, and on appeal this court reversed the case. See Bosson v. Lemcke, Treasurer (1922) 192 Ind. 668, 137 N.E. 551.

No other steps were taken till 1928, when these appellees filed their claims with the county auditor of Marion county to recover the taxes paid in the years 1920, 1921, and 1922 on account of the horizontal increase which was made by the county board of review in August, 1920.

The conclusions of law as stated by the trial court upon the facts found are as follows:


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