Cummings v. Stark

• Decision Date: 06 June 1893
• Docket Number: 16,957
• Citation: 34 N.E. 444,138 Ind. 94
• Parties: Cummings, Treasurer, et al. v. Stark et al
• Court: Indiana Supreme Court

34 N.E. 444

138 Ind. 94

Cummings, Treasurer, et al. v. Stark et al

No. 16,957

Supreme Court of Indiana

June 6, 1893

Petition for Rehearing Overruled May 11, 1894.

From the Parke Circuit Court.

Judgment affirmed.

A. G Smith, Attorney-General, D. H. Maxwell and H. Maxwell, for appellants.

E. Hunt and A. M. Hadley, for appellees.

OPINION

McCabe, J.

Appellees brought suit against appellants to enjoin the collection of certain taxes.

The court overruled a separate demurrer of each of the appellants to the complaint, for want of sufficient facts, and appellants refusing to plead further, and electing to stand on their demurrer, judgment was rendered upon said demurrer enjoining the tax.

The errors assigned, separately and jointly, are that the court erred in overruling each of said demurrers.

The complaint, after the title, is as follows:

"That plaintiffs are a firm, and have an office, as such, doing a banking business, with a view to profit, at Rockville, in Adams township, in Parke county, State of Indiana, in the name and style of the 'Parke Bank,' and that they were so engaged at said place and in said name on the 1st day of April, 1891, and that they were then, and still are, residents of said county and township; that defendant Norval W. Cummings is the duly qualified and acting treasurer of said county; that on said 1st day of April, 1891, plaintiffs, as such firm, and in said firm name of 'Parke Bank,' were the owners of property of the kind and value, namely:

"United States Treasury notes

$ 11,446 00

"United States bond

600 00

"Other moneys

2,242 00

"Deposits in other banks

56,651 00

"Notes and bills receivable

51,842 00

"Stock in Rockville B., L. F. and S. A.

1,134 65

"Stock in Edgar Co. Nat'l Bank

4,000 00

"Stock in Rockville Opera House Co.

750 00

"Office furniture and fixtures

1,000 00

"Real estate in Parke county

6,090 00

"And that such firm, in said name, owned no other property; that on said 1st day of April, 1891, they, as such firm, were indebted to their depositors, for deposits in their said bank, in the sum of $ 119,465; that on the 1st day of April, 1891, they, as such firm, made out and furnished to the assessor of said township a verified list and statement of all of the above personal property liable for taxation in said county, and also a statement of said indebtedness; that in said statement and list of property returned for taxation, they returned their said deposits in other banks, the said sum of $ 56,651.00

As credits with their other credits 51,842.00

The total amounting to $ 108,493.00

And offset the same by their said indebtness of $ 119,465 to their depositors, leaving nothing in the way of credits for taxation; that such list and statement was accepted by said assessor without making any change therein, and was returned by him to the auditor of said county, when the same was passed on by the county assessor and the county board of review of said county without adding to or taking anything therefrom, and finally approved by them as listed by plaintiffs, and no change was ever made therein other than as hereinafter stated; that afterwards the State Board of Tax Commissioners, upon notice to plaintiffs, and over their objections, added $ 55,651 of said deposits in other banks, to wit, of the $ 56,651 which plaintiffs had returned as credits, to their assessment, and thereupon notified the auditor of said county to add said sum to their list, and place the same, to wit, said $ 55,651, upon the tax duplicate against plaintiffs' firm in their said name, which he did without other notice, in their absence, and without their knowledge or consent, and extended the same on the tax duplicate of said county for said year of 1891, and thereupon assessed and carried forward against plaintiffs and their property on said duplicate the sum of $ 1,046.24 as taxes on said sum of $ 55,651, and afterwards made out and transmitted to the treasurer of said county a duplicate of said assessments, with said taxes assessed, and that such duplicate is now in the hands of said treasurer for the purpose of collecting the taxes assessed thereon for said county; that plaintiffs have paid to said treasurer all the taxes due upon all the property owned by them, of every description whatever, except the taxes added upon the $ 55,651 of said deposits of $ 56,651 aforesaid, and that said treasurer is threatening to and will collect said taxes by distress and sale of plaintiffs' property unless he is enjoined from so doing, and plaintiffs further aver that said taxes are a cloud upon the title to their property, and should be removed, and said treasurer perpetually enjoined from collecting or attempting to collect the same, for the reasons, namely:

"First. The said assessment made pursuant to the order of said board of tax commissioners was without authority of law.

"Second. The said assessment against plaintiffs, by said auditor, was without any lawful notice or authority of law.

"Third. That on the 1st day of April, 1891, said deposits of $ 56,651 were not moneys belonging to them, but were credits to their bank, on the books of other banks where such deposits had been made in their usual course of business as bankers, and for banking purposes; and that no part thereof was on special deposits, and that all of their said deposits with said banks, amounting to $ 56,651, and all their other credits of $ 51,842, did not equal their indebtedness of $ 119,465 aforesaid. Wherefore plaintiffs pray judgment that the adding of said sum of $ 55,651 to plaintiffs' taxables, and assessing $ 1,046.24 taxes thereon, was without authority of law; that the said deposits were credits from which debts should be deducted, and that the said $ 55,651 was not liable to taxation, and that the defendants and their successors in office be forever and perpetually enjoined from collecting or attempting to collect said taxes assessed on said $ 55,651, and for all other and proper orders, judgments, and decrees in the matter."

The first question presented is whether the order of the State Board of Tax Commissioners complained of was valid. The powers of such board being purely statutory, that question must depend upon a proper interpretation of the tax law approved March 6, 1891. Acts 1891, p. 199. It is conceded on both sides that section 114 of that act confers jurisdiction and plenary power on the "county board of review," not only to hear complaints of any owner of personal property, except "railroad track and rolling stock," and to equalize the valuation of property and taxables made subsequent to the first day of April, and to correct any list of valuation, but also to equalize the valuation made by the assessor, either by adding to or deducting therefrom such sums as are necessary to fix the true cash value. But it is contended by the appellant that original jurisdiction to do these same acts is conferred also on the State Board of Tax Commissioners by sections 120 and 129, and other sections of that act. By sections 120 and 125, the power to do these things on appeal is conferred on the State Board of Tax Commissioners. In support of this contention appellant cites Cleveland, etc., R. W. Co. v. Backus, 133 Ind. 513, 33 N.E. 421. This court in that case said: "As to property other than that denominated by the law as 'railroad track' and 'rolling stock,' including all property, real and personal, of individuals, the law provides for its assessment by assessors, and it creates county boards of review in the several counties of the State, and by section 114, from which we have hereinbefore quoted, it is provided that such county boards 'shall pass upon each valuation, and may, on sufficient cause being shown, or on its own motion, correct the assessment or valuation of any property in such manner as will, in its judgment, make the valuation thereof just and equal.' While this section may...