OPINION
Baker
C. J.
On
appellee's suit a decree was entered enjoining the city
and its officers from carrying out a contract with appellant
Clifford. The assignment is that the court erred in
overruling appellant's demurrer to the complaint.
The
complaint shows that the appellee is a citizen and taxpayer
of the city of Richmond; that the city entered into a
contract with Clifford whereby Clifford undertook to search
for property that had been secreted and omitted from the tax
duplicate of the city and to report discoveries thereof to
the city clerk, and whereby the city undertook to pay
Clifford for his services a sum equal to twenty per centum of
the taxes collected by reason of his discoveries; that
Clifford has discovered a large amount of secreted and
omitted property subject to taxation by the city, and has
reported his discoveries to the city clerk; that the city
clerk has entered such property on the tax
duplicate; that the city treasurer has collected the taxes
thereon; and that the city, unless restrained, will pay
Clifford according to the contract, to the irreparable injury
of appellee and all other taxpayers of the city.
Is the
contract void? It is, if the services to be performed by
Clifford lay within the official duties of the tax officers
of the city. City of Ft. Wayne v. Lehr, 88
Ind. 62; Miller v. Embree, 88 Ind. 133. The
tax officers of the city are the city clerk and the city
treasurer. The duties of the city clerk, in reference to the
original making up of the duplicate and putting omitted
property thereon, are the same as the county auditor's.
The duties of the city treasurer correspond with those of the
county treasurer. There is no city assessor nor city board of
equalization; but the city clerk is given access to the
returns of the county assessor and to the duplicates in the
county auditor's office; and all the provisions of the
general tax law, so far as they can be applied, are to govern
cities. §§ 3505, 8560-8565, 8672 Burns 1894,
§§ 3070, 6409-6414, 6521 Horner 1897.
In
reference to the assessment of omitted property, the present
law (Acts 1897 p. 141, § 8560 Burns Supp., § 6409
Horner 1897) is this: "Whenever the county auditor [city
clerk] shall discover or receive credible information, or if
he shall
have reason to believe that any real or personal property
has, from any cause, been omitted in whole or in part, in the
assessment of any year or number of years, from the
assessment book or from the tax duplicate, he shall proceed
to correct the tax duplicate and add such property thereto
with the proper valuation, and charge such property and the
owner thereof with the proper amount of taxes thereon; to
enable him to do which he is invested with all the powers of
assessors under this act. But before making such correction
or addition, if the person claiming to own such property, or
occupying it, or in possession thereof, resides in the
county, and is not present, he shall give such person notice
in writing of his intention to add such property to the tax duplicate, describing it in general terms,
and requiring such person to appear before him at his office
at a specified time, within five days after giving such
notice, and to show cause, if any, why such property should
not be added to the tax duplicate; and if the party so
notified does not appear, or if he appears and fails to show
any good and sufficient cause why such assessment shall not
be made, the same shall be made, and the county auditor [city
clerk] shall, in all cases, file in his office a statement of
the facts or evidence on which he made such correction; but
he shall in no case reduce the amount returned by the
assessor, without the written consent of the Auditor of
State, given on the statement of facts submitted by the
county auditor. When the county auditor [city clerk] shall
discover credible information or have reason to believe that
real or personal property has, from any cause been omitted,
in whole or in part, from assessment for taxation, or such
credible information shall be furnished to such county
auditor [city clerk] it shall be the duty of such county
auditor [city clerk] to take the steps provided for by this
section, to place such omitted property on the tax duplicate.
If such county auditor [city clerk] shall fail or refuse, on
the discovery by himself, or on credible information being
furnished him by another person, that property has been
omitted from taxation, the State on the relation of any State
officer, or of the State Board of Tax Commissioners, or of
any taxpayer of the county [city] in which failure or refusal
occurs, shall have the right to proceed against such county
auditor [city clerk] in any court of competent jurisdiction
by mandamus, to compel such county auditor [city clerk] to
comply with the provisions of this section. In the trial of
such a suit, the question of what constitutes credible
information, as mentioned in this act, shall be a question of
fact to be determined by the court or jury trying the case,
and either party shall have the right to demand a jury to try
such question of fact. If judgment shall be rendered to the effect that credible information has been
discovered by, or furnished to such county auditor...
