Croop v. Walton
| Decision Date | 10 June 1927 |
| Docket Number | 24,810 |
| Citation | 157 N.E. 275,199 Ind. 262 |
| Parties | Croop et al. v. Walton et al. [*] |
| Court | Indiana Supreme Court |
1. TAXATION.---Collection of tax may be enjoined when property not subject to taxation.---Where property that is not subject to taxation is placed on the tax duplicate, the assessment is void, and its collection can be restrained by injunction regardless of the right to appeal therefrom or of a right to file a claim for refund. p. 265.
2. TAXATION.---One seeking to have his personal property exempted from taxation on the ground of his nonresidence is not required to show that his property was assessed elsewhere. p. 265.
3 TAXATION.---Corporate stock is assessable at owner's domicile.---Property of an intangible nature, such as stock in a corporation, and mortgages, has no situs of its own for the purpose of taxation, and is therefore assessable only at the place of its owner's domicile. p. 268.
4 TAXATION.---Word "inhabitant" defined.---The word "inhabitant," as used in the general tax statute in reference to the place where personal property shall be assessed, means "one who has his domicile or fixed residence in a place." p. 268.
5 DOMICILE.---"Domicile" defined.---One's "domicile" is that place where he has his true, fixed, permanent home or habitation, without any present intention of removing therefrom, and, to which, whenever he is absent, he has the intention of returning. p. 269.
6. DOMICILE.---There is a very clear and definite distinction between "domicile" and "residence" which is stated. p. 269.
7. DOMICILE.---Person may have domicile in one place and residence in another.---While a person can have but one domicile at a time, he may have concurrently a residence in one place or jurisdiction and a domicile in another. p. 270.
8. DOMICILE---Removal of residence until health of family isrestored does not change domicile.---A complete removal of residence, with the intention to remain an indefinite time, even though there may be a floating intention to return to the former domicile at some future and indefinite period, constitutes a change of domicile, but an intention to return on the occurrence of some event which may be reasonably anticipated, as when the health of a member of the family has been restored, is not such an indeterminate or floating intention. p. 270.
9. DOMICILE.---By choice depends on intention.---Domicile is of origin or birth, by choice or operation of law; intention is the true basis or foundation of domicile by choice. p. 271.
10. DOMICILE.---What is necessary to effect a change.---To effect a change of domicile, there must be an abandonment of the first domicile, with an intention not to return to it, and there must be a new domicile acquired by residence elsewhere, with an intention of residing there permanently, or, at least, indefinitely. p. 271.
11. DOMICILE.---Presumption of continuance.---An established domicile is presumed to continue in the absence of proof of another domicile having been acquired. p. 272.
12. TAXATION.---Residence in Indiana which did not constitute property owner "inhabitant" within meaning of tax law.---Where a manufacturer who had resided for many years in a city of Michigan, after the death of a daughter, which greatly affected his wife's health, her condition becoming worse whenever they returned to their home city, took up his residence at a point in Indiana, thirty-four miles distant, and continued to live there for several years, with the intention to return to their former home whenever his wife recovered her normal mental and physical condition, continued his business activities and ownership of property at that point, exercised political rights there, kept up his membership in church, lodges and clubs, and gave that as his residence in deeds, mortgages, leases and contracts, and in hotel registrations, insurance policies, etc., buried his daughter there, paid taxes there on stock in corporations of Indiana and other states, and notified the taxing authorities of Indiana that his domicile was in Michigan, he was not an "inhabitant" of Indiana within the section of the tax law providing where personal property shall be assessed for taxation (14050 Burns 1926). p. 272.
From Kosciusko Circuit Court; Lemuel W. Royse, Judge.
Suit by Jerrold F. Walton and others against Charles A. Croop and others for injunction. From a judgment for plaintiff's, the defendants Charles A. Croop and others appeal.
Affirmed.
L. L. Burris, Thomas A. Davis and Warren Berkey, for appellants.
Frazer, Frazer & Headley and Verne G. Cawley, for appellees.
Appellee Walton brought this action to enjoin appellants, who are county officials of Elkhart county and his coappellees, who are city officials of the city of Elkhart, from collecting certain taxes, alleged to have been unlawfully assessed against him on certain intangible property, consisting principally of corporate stock in a Michigan furniture manufacturing company. The issues were formed by answers in general denial.
The trial court, at appellee Walton's request, made a special finding of facts and stated its conclusions of law thereon, the first and second conclusions of law being as follows:
The third conclusion of law was that the plaintiff take nothing as against the defendants city of Elkhart, its controller and treasurer. The conclusions of law were excepted to by the auditor, treasurer and assessor of Elkhart county who are the appellants. The court rendered judgment enjoining the appellants from collecting or attempting to collect the disputed taxes, and providing that appellee Walton recover of appellants his costs, and that the Elkhart city officials, joined as defendants, recover of appellee their costs. The conclusions of law and also the overruling of appellant's motion for a new trial, are assigned as error.
The first proposition presented by appellants is that appellee Walton's exclusive remedy was by appeal from the county assessor's decision that his property was taxable, and not by an injunction suit which attacks collaterally the assessor's finding. Section 14298 Burns 1926, Acts 1919, ch. 59, § 256; § 1, ch. 195, acts of 1911, provides that from the finding of the county assessor whose duty it is "to investigate, decide, assess and place on the tax duplicate of any county in this state any property subject to taxation and omitted to be returned, listed and assessed for taxation, the owner of such property or other person against whom such omitted property has been assessed, shall have the right to appeal." The appellee Walton contended, and the court held, that the property here involved was not "subject to taxation." If the omitted property is subject to taxation and the amount assessed is erroneous, the taxpayer has "the right to appeal" under the statute quoted, and he also has the right to file a claim for a refund under § 14376 Burns 1926, Acts 1919, ch. 59, § 332, but where the property is not subject to taxation the assessment is void and its collection can be restrained by injunction, regardless of the right to appeal or to file claim for refund. Senour, Treasurer, v. Ruth (1895), 140 Ind. 318, 39 N.E. 946; Herron, Treasurer, v. Keeran (1877), 59 Ind. 472, 26 Am. Rep. 87; Wilt v. Bueter, Treas. (1916), 186 Ind. 98, 111 N.E. 926, 115 N.E. 59; Buckingham v. Kerr, Treas. (1918), 68 Ind.App. 290, 120 N.E. 422; Layman v. Telephone Co. (1904), 123 Iowa 591, 599, 99 N.W. 205; Nyce v. Schmoll (1907), 40 Ind.App. 555, 82 N.E. 539.
In applying for an injunction, appellee Walton seeks an equitable remedy, and appellants say that he has not done equity and does not come with clean hands because he admitted that he paid no taxes to the State of Michigan on certain bonds and on a mortgage; and that such facts if found by the trial court, would have required different conclusions of law. The record does not bear out appellant's contention. Appellee Walton, on cross examination, testified that he had made no personal property return for certain years in the State of Michigan, except on certain bank stock. The treasurer of St. Joseph county, Michigan, however, testified that the tax on the mortgage was paid at the time it was recorded and that henceforth, under the law of Michigan, such property was not subject to taxation, and Walton also testified on direct examination that taxes were paid on the bonds. Moreover, one seeking to establish his claim of exemption from taxation on the ground of non-residence is not required to show that his property was assessed elsewhere. Shirk v. Board of Review (1908), 137 Iowa 230, 114 N.W. 884; Theobald v. Clapp (1909), 43 Ind.App. 191, 199, 87 N.E. 100.
Appellant's principal contention is that the conclusions of law are erroneous for the reason that the findings of fact establish the status of Walton as an "inhabitant" of Indiana within the meaning of our tax law, § 14050 Burns 1926, Acts 1919, ch. 59, § 10, and do not establish his status as being legally domiciled in Michigan. A consideration of this question requires a brief resume of the thirty-one findings of fact, which follows:
Walton from 1899 to 1916, maintained a...
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