Evansville and Terre Haute Railroad Company v. West

• Decision Date: 20 June 1894
• Docket Number: 16,880
• Citation: 37 N.E. 1009,139 Ind. 254
• Parties: Evansville and Terre Haute Railroad Company v. West, Treasurer, et al
• Court: Indiana Supreme Court

37 N.E. 1009

139 Ind. 254

Evansville and Terre Haute Railroad Company v. West, Treasurer, et al

No. 16,880

Supreme Court of Indiana

June 20, 1894

Petition for Rehearing Overruled Oct. 18, 1894.

From the Gibson Circuit Court.

The judgment is affirmed, and the restraining order issued is dissolved.

J. E Iglehart and E. Taylor, for appellant.

A. G Smith, Attorney-General, J. W. Kern, L. O. Bailey, W. A Ketcham, S. R. Hamill, W. W. Ireland, W. D. Robinson, J. T. Beasley and A. B. Williams, for appellees.

OPINION

Hackney, C. J.

The appellant sued the appellees, James A. West, treasurer of Gibson county, John F. Saunders, treasurer of Vanderburg county, John Walz, treasurer of Posey county, G. W. Donaldson, treasurer of Knox county, Jonathan Scott, treasurer of Sullivan county, Gus A. Conzman, treasurer of Vigo county, Ernest Mueller, treasurer of Clay county, F. H. Hoffman, treasurer of the city of Vincennes, W. W. Hauck, treasurer of the city of Terre Haute, A. C. Fogas, treasurer of the city of Mt. Vernon and John McDonough, treasurer of the city of Evansville, and sought to enjoin the enforcement of such taxes as were levied, computed and placed upon the tax duplicates of the several counties and cities named, upon the basis of valuations by the State Board of Tax Commissioners of the railroad and rolling stock of the appellant in said several counties and cities as made September 8, 1891, and in so far as the same was in excess of the valuations thereof returned by the appellant.

The lower court sustained the demurrers of the appellees to the complaint, and judgment was rendered in their favor upon failure by the appellant to plead further. That ruling is the only error presented by the record.

Upon the appeal herein, this court granted a restraining order by which the enforcement of the taxes complained of was stayed until ordered otherwise. The appellees now move the dissolution of this restraining order.

The questions presented by the complaint are identical with those fully considered and decided by this court, as to the powers, duties, privileges and procedure of the State Board of Tax Commissioners, created and imposed by the act of the Legislature of Indiana, approved March 6, 1891 (Acts 1891, p. 199), and as to the constitutionality of said act, in the cases of Cleveland, etc., R. W. Co. v. Backus, Treas., 133 Ind. 513, 33 N.E. 421; Indianapolis, etc., R. W. Co. v. Backus, Treas., 133 Ind. 609, 33 N.E. 443; Pittsburgh, etc., R. W. Co. v. Backus, Treas., 133 Ind. 625, 33 N.E. 432, and as confirmed in said cases, upon certification to the Supreme Court of the United States, May --, 1894.

Upon the authority of those cases this case must be affirmed and the restraining order dissolved.

In addition to the questions originally presented by the complaint the parties now present for consideration certain questions as to the proper penalties or penalties and interest collectible from the appellant upon its several delinquencies in the payment of the taxes involved in this suit.

It is alleged that in some instances it is proposed to compound penalties; that in others penalties of ten percentum and of six per centum, with interest added, are demanded; that in still others such penalties, with interest compounded, are claimed, and in still others, and where, before delinquencies, payments were made, equal to or in excess of the first installment, with directions to apply the sums paid "on account," it is claimed that such installment became delinquent and that penalties attached on account thereof.

Section 152 of the tax law, Acts 1891, p. 260, is as follows: "Any person or taxpayer charged with taxes on the tax duplicate in the hands of a county treasurer may pay the full amount of such taxes on or before the third Monday in April, or may, at his option, pay the first installment on or before such third Monday, and the remaining installments on or before the first Monday of November following: Provided, however, That all road taxes charged shall be included in the first installment: And, provided further, That in all cases where the first installment shall not be paid on or before the third Monday in April, the whole amount unpaid shall become due and be returned delinquent, and collected as provided by law, and there shall be a penalty added of ten per cent. upon the amount of any installment not paid when due, which the persons or property assessed shall pay, together with cost of collection, and, if such taxes remain delinquent at the succeeding first Monday in November, there shall be a penalty of six per centum added to all such taxes that become delinquent at the preceding April and November settlements, and a penalty of ten per centum only shall be added to the current delinquency occurring on the first Monday in November."

From this section, and other provisions of the act, it is manifest that the whole tax of any year is due on the third Monday in April succeeding, and the privilege of paying without penalty any part thereof in November thereafter is upon the condition that the first installment be paid on or before the third Monday in April. This intention is made clear by the second proviso of the above quoted section. Having paid the April installment and permitted the November installment to become delinquent, the section quoted provides a penalty against the property of ten per centum of such November installment. If the April installment is not paid, the whole tax is delinquent, and a penalty of ten per centum thereof is to be added, "and if such taxes remain delinquent at the succeeding first Monday in November, there shall be a penalty of six per centum added," not to the delinquent taxes and penalty, but, as the act plainly states, it is "added to all such taxes as become (became) delinquent at the preceding April and November settlements."

The concluding provision of said section 152, that "a penalty of ten per centum only shall be added to the current delinquency occurring on the first Monday in November," is intended to provide a penalty where such installment only is delinquent, and is a denial of the right to add the six per centum, which is the special penalty for permitting the year's taxes to pass two paying periods without payment.

The appellant insists that the six per centum is not added until the delinquency shall have continued one full year, that is until the next annual third Monday in April. As has been seen, we do not agree with this conclusion. The idea pervading the statute is that payments shall be made promptly, and delinquents coerced without delay, and the theory that three paying periods shall pass before the addition of the second penalty, is not tenable. We find no authority in the act for compounding the penalties, that is, for adding anew either penalty from year to year during the delinquency, nor is there any reasonable construction of the act permitting the six per centum provided by said section 152, to be calculated upon both the delinquent tax and the ten per centum thereof added as the...