Burgh v. State ex rel.McCormick

• Decision Date: 30 October 1886
• Parties: Burgh v. State ex rel. McCormick, Pros. Atty., etc.
• Court: Indiana Supreme Court

108 Ind. 132

9 N.E. 75

Burgh

v.State ex rel.

McCormick, Pros. Atty., etc.

Supreme Court of Indiana.

October 30, 1886.

Appeal from Martin circuit court.

Thos. M. Clarke and J. T. Rogers, for appellant. McCormick & Porter, for appellee.

Zollars, J.

This is an action in the name of the state, on the relation of the prosecuting attorney, to recover from appellant the statutory penalty for having made a false tax-list. The action is based upon section 6339, Rev. St. 1881. So much of that section as is material here is as follows: “If any person * * * shall give a false or fraudulent list, schedule, or statement required by this act, he * * * shall be liable to a penalty of not less than $50, nor more than $5,000, to be recovered in any proper form of action, in the name of the state of Indiana, on the relation of the prosecuting attorney. The assessor shall forthwith notify the prosecuting attorney of any such delinquency or offense, and he shall prosecute such offender to final judgment and execution; and such fine, when collected, shall be paid into the county treasury, for the use of the county, and the prosecuting attorney shall receive ten per centum commission on all moneys so collected and paid in, and a docket fee of ten dollars, to be taxed and collected with costs in such action,” etc.

The following is a fair epitome of the complaint: In May, 1885, the assessor of Rutherford township, in Martin county, called on appellant for a list of all his personal property, money, rights, credits, and choses in action, and received from him a list which was not a true and correct list of his rights, credits, and choses in action, but was false and fraudulent, in that it did not contain certain described notes and mortgages, which appellant held and owned on the first day of the preceding April. Although requested by the assessor so to do, appellant failed and refused to report the several described notes and mortgages, but falsely and fraudulently reported that he had nothing due him, and gave a false and fraudulent list of his taxable personal property, etc. The wrong attempted to be charged is the giving of a false, fraudulent tax-list.

Appellant seeks a reversal of the judgment against him upon the action of the court below in overruling his demurrer to the complaint. One objection urged to the complaint is that it contains no averment that appellant was a resident of Rutherford township, in Martin county. This objection, we think, is well taken. The tax law requires that the owner shall list in the township where he resides his money, etc., and credits due from or owing by any person or persons, body corporate or politic, to him, without regard to the place where the said taxables may exist or be situated. Rev. St. 1881, §§ 6286-6290.

The above section 6339, upon which this action is predicated, inflicts a penalty, in case the list required by the act, the tax law, is false or fraudulent. The act, as we have seen, requires the owner to list his credits, etc., in the township where he resides. He is not required to list them in any other township. Hence the furnishing of a false list of such property to the assessor of a township other than that in which the owner may reside, will not subject him to the penalty provided by the above section 6339. That section is penal in character; and, to make a case against a person for the penalty therein provided, enough must be averred to show that he is within its terms. As said in the case of W. U. Tel. Co. v. Axtell, 69 Ind. 199: “A court cannot create a penalty by construction, but must avoid it by construction, unless it is brought within the letter and the necessary meaning of the act creating it.” See W. U. Tel. Co. v. Ferguson, 57 Ind. 495;W. U. Tel. Co. v. Harding, 103 Ind. 505, 508; S. C. 3 N. E. Rep. 172. See also, as somewhat analogous, Lose v. State, 72 Ind. 285;Stribbling v. State, 56 Ind. 79. The complaint being fatally defective for the reason above stated, the judgment must be reversed for the error of the court below in overruling the demurrer thereto.

Here this opinion might be closed but for the fact that other questions are discussed that will not cease to be material with the reversal of the judgment. Section 2 of article 8 (Rev. St. 1881, § 183) of the constitution provides that fines assessed for breaches of the penal laws of the state shall go into, and be a part of, the common-school fund. It is contended that, as the above section 6339 requires the penalty therein provided to be paid into the county treasury for the use of the county, it is in contravention of the above constitutional provision. The answer is...