Deniston v. Terry
| Decision Date | 22 June 1895 |
| Docket Number | 17,220 |
| Parties | Deniston, Auditor, v. Terry |
| Court | Indiana Supreme Court |
From the Fulton Circuit Court.
The judgment is reversed, with instruction to sustain the demurrer to the complaint.
W. A Ketcham, Attorney-General, and M. A. Baker, for appellant.
I. H C. Royce, G. M. Walker, B. K. Elliott, W. F. Elliott, G. W Holman, R. C. Stephenson, S.D. Coffey, J. M. Rawley and T. W Hutchinson, for appellee.
On August 14, 1893, the county assessor placed in the hands of appellant the following statement:
J. N. Orr, County Assessor.
"Paid up B. and L. stock."
On August 21, 1893, the appellee filed with the appellant his written protest against the placing upon the duplicate of said $ 1,500 of building and loan stock for the reasons: (1) That section 89 of the general tax law, Acts 1891, p. 233 (section 8507, R. S. 1894), "expressly exempts building and loan association stock from taxation;" (2) that the assessor should have brought the matter before the county board of review; and (3) that the appellee should have received five days' notice of the proposed assessment.
On September 27, 1893, the appellee filed his complaint alleging the foregoing facts and asking that the appellant be enjoined from placing said building and loan stock upon the tax duplicate. To this complaint a demurrer was overruled, and this ruling is the only error assigned.
If we should consider only the reasons given in the protest and in the complaint for injunction we should have to hold them insufficient. We do not think, in the first place, that the statute cited attempts to, or does, in fact, "expressly exempt building and loan association stock from taxation;" nor do we think that if such attempt were made it would be in compliance with the terms of the constitution.
Article X, section 1, of the constitution requires that "The General Assembly shall provide, by law, for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal, excepting such only for municipal, educational, literary, scientific, religious, or charitable purposes, as may be specially exempted by law." Certainly it will not be contended that "building and loan association stock" is within any of the classes of property which it is here provided may be exempted from taxation. This stock is not "municipal, educational, literary, scientific, religious, or charitable" property, and so is not of any of the kinds of property that "may be specially exempted by law" from taxation.
As to the claim that the matter of this taxation should have been brought to the attention of the county board of review, it is enough to say that the complaint shows that this stock was "omitted property," and that section 113 of the general tax law (section 8531, R. S. 1894) provides, amongst other things, that "It shall be the duty of the county assessor, at any time during the year, to list and assess upon the proper assessor's books, in the office of the county auditor, any omitted property that he may discover, and which should be assessed; and the same shall be placed upon the duplicate by the auditor, and the taxes thereon extended and collected as in other cases." Notice to the property owner of the proposed assessment of such omitted property is also provided for in the same section. Saint v. Welsh, Exr., 141 Ind. 382, 40 N.E. 903.
As to the third reason given for the injunction, that "no such notice" to appellee as required by statute was given, we may observe that it is not denied that some notice was given. It is further shown that appellee did appear and protest against the proposed assessment; and also, that some time afterwards, at the date of filing the complaint, the assessment had not yet been made, the allegation being, "that notwithstanding the protest the defendant is threatening" to place upon the tax duplicate for the year 1893 said $ 1,500 of building and loan stock. Where a party has actual notice, and voluntarily enters his appearance to resist a proposed action against him, that is sufficient to confer jurisdiction.
The reasons given in the complaint being insufficient, it remains to inquire whether the facts alleged were such as to authorize the granting of the injunction.
From the complaint it appears that the stock here in question is "paid up building and loan stock."
The statute under which building and loan associations are assessed, being section 89 of the general tax law, supra, and which is, substantially, a reenactment of the act in force March 7, 1887, Acts 1887, p. 40 (sections 858, 859, Elliott's Supp.; sections 4462, 4463, R. S. 1894), is as follows:
"Building, loan-fund and saving associations shall be listed and assessed in the following manner: Before the first day of June of each year, the secretary of every building, loan and savings association shall file with the auditor of the county in which such association was organized, a duplicate statement verified by said secretary, showing the amount paid into said association by shareholders upon shares of stock issued by it up to the first day of April preceding, and then outstanding, and also the amount loaned up to said date, to shareholders, and secured by mortgage upon real estate listed for taxation.
"And the auditor shall deliver said statement to the proper assessor, who shall proceed to assess said association for taxation with the amount shown to have been paid into said association up to said first day of April upon outstanding shares of stock, less the amount shown by the statements to have been loaned to shareholders upon said mortgage security so listed for taxation, and neither said association nor the shareholders therein shall be liable to other taxation upon said shares of stock." Acts 1891, p. 233, supra, section 8507, R. S. 1894.
Whether, as contended by appellant, this statute is unconstitutional as to all shares of stock, including those upon which shareholders have obtained loans from the association, secured by mortgage upon real estate listed for taxation, as well as those shares held by creditors of the association, we need not inquire, since the question before us relates altogether to the latter class of stock.
We may say, however, that the stock held by borrowers appears to be the kind of stock contemplated in the statute. When a shareholder in a building and loan association has borrowed from it the value of his stock, and is engaged, under the rules of the association, in repaying his loan by weekly or monthly installments, or at such times and in such amounts as may be agreed upon, subject to the provisions of the statutes regulating such associations, it would seem that the stock so held in his name is not of any real value, except to show the terms of his contract of payment to the association....
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