Hyland v. The Brazil Block Coal Co.

• Decision Date: 31 January 1891
• Docket Number: 15,431
• Citation: 26 N.E. 672,128 Ind. 335
• Parties: Hyland, Auditor, et al. v. The Brazil Block Coal Company
• Court: Indiana Supreme Court

26 N.E. 672

128 Ind. 335

Hyland, Auditor, et al. v. The Brazil Block Coal Company

No. 15,431

Supreme Court of Indiana

January 31, 1891

Petition for a Rehearing Overruled May 22, 1891.

From the Clay Circuit Court.

Judgment affirmed.

W. B Schwartz, J. A. McNutt and H. Teter, for appellants.

G. A Knight and A. W. Knight, for appellee.

Elliott, J. Coffey, J., did not take any part in the decision of this case.

OPINION

Elliott, J.

The complaint of the appellee alleges that it is a mining corporation organized under the laws of this State; that its nominal capital stock is $ 619,300; that on the 1st day of April, 1889, its entire capital was invested in real and personal property in the counties of Clay, Owen and Parke; that it had no surplus capital or accumulations of any kind; that on the day named its capital stock had neither a market value nor an actual value over and above that of its tangible property; that its entire capital stock was represented by its tangible property, and was of no greater value than that property; that it listed for taxation all of its personal property, rights, credits, money and effects in the counties named, and in the several townships therein; that all of its personal property was appraised at its fair cash value; that, in addition to listing its tangible personal property, it made out and delivered to the assessor of the township, wherein its principal office was located, a sworn statement of its capital stock, as required by section 6357, R. S. 1881; that in such sworn statement it fixed the value of its capital stock at that of its tangible property; that on the 1st day of April, 1889, it owned no property of any kind except such as it listed and returned for taxation; that the total value of all of its property was $ 140,042, and that this sum represented the actual value of its capital stock; that on the 17th day of June, 1889, a board of equalization convened at the court house in the city of Brazil, and on the 5th day of its session it assumed to assess and did assess the capital stock of the appellee at the value of fifty per cent. on its face value; that such assessment fixed the total value of appellee's capital stock at $ 309,650; that the board ordered that from the total value so fixed upon the capital stock the tangible property of the appellee, $ 140,042, should be deducted, and that the board also directed that the difference between the sums named, $ 169, 608, should be added to the property of the appellee for taxation. It is charged that the proceedings of the board of equalization were illegal for the following reasons:

"1st. That by so assessing the capital stock and adding $ 169,608 to the assessed value of the plaintiff's other and tangible property already upon the tax duplicate, the pretended board of equalization has unlawfully imposed upon the plaintiff a double tax on the same property owned and held by the plaintiff on the 1st day of April, 1889.

"2d. That by the illegal action of the pretended board the property of the plaintiff is taxed unlawfully at a greater rate than is assessed upon private individuals.

"3d. That said additional sum and increased assessment is not equal and uniform taxation, and imposes upon the plaintiff the injustice and burden of paying a twofold or double tax upon the same property.

"4th. That the pretended board of equalization 'illegally, wrongfully and without jurisdiction,' made such assessment and did not in any manner give plaintiff any notice whatever of such proposed action, nor did it cause, as the law directs, a written notice to be issued by the auditor as the law requires, nor was any notice of any kind given, issued or published in any newspaper of the proposed action of the board."

It is further alleged that the board of equalization was illegally convened and organized for the reasons:

"1st. That it did not meet on the 1st Monday in June, 1889, as required by law, but did meet on the 3d Monday in June, 1889, in violation of law.

"2d. That no notice was given by the auditor of Clay county, and published, or posted two weeks before the 1st Monday in June, 1889, of the meeting of the board of equalization.

"3d. That the orders, acts and assessments of the board were made and performed after the expiration of fifteen days from the 1st Monday of June, 1889, and after the time limited by law had expired within which the board could legally act."

Section 129 of the act of 1881 (Acts 1881, p. 656) provides for the formation and duties of a county board of equalization, and declares that it shall meet annually on the third Monday of June. It also provides that two weeks' notice of the time of meeting shall be given by publication. Section 6397, R. S. 1881. Section 1 of an act of the same year provides that "After the present year the county board of equalization shall meet, * * on the first Monday of June, annually." Section 6398, R. S. 1881. The act first mentioned was passed on the 29th day of March, 1881, and that last mentioned on the 16th day of April of the same year. Both took effect immediately. On the 9th day of March, 1889 (Acts 1889, p. 367), an act was passed amending section 129 of March 29, 1881, and in this latter act the time for the meeting of the board of equalization was named as the third Monday in June of each year. Elliott's Supp., section 2127. This was done by incorporating the language of section 129 of the act of March 29th, 1881, in the later act.

The question which comes first in natural order is whether the board of equalization met on the day fixed by law, for if the session held in June, 1889, was not held at the time designated by law, the proceedings of the board were ineffective. Such a tribunal must meet and organize as the law requires. State, ex rel., v. McGinnis, 34 Ind. 452; Shoemaker v. Board, etc., 36 Ind. 175.

Whether the meeting on the third Monday in June, 1889, was legal must depend upon the effect of the act of March 9th, 1889. That act is unquestionably valid, for section 129 of the act of March 29th, 1881, had not been amended. It stood on the statute book as an act subject to amendment, for the act of April 16th, 1881, did not profess to amend it. Counsel do not contend, although the case has been very fully and ably argued, that the act of 1889 is invalid, nor could such a contention be even plausibly maintained, for the act of March 29th, 1881, had not been previously amended. If affected at all it was in part repealed by an independent statute. The question, therefore, is what is the effect of the re-enactment of section 129 of the act of March, 1881?

There can, of course, be no doubt that counsel are right in their position that the legislative intention must govern, but that intention must be found in the statute. Nor can there be any doubt that repeals by implication are not favored. Neither can there be any doubt that, where there is a manifest repugnancy between the earlier and later statutes, the earlier must be deemed to be repealed. If, therefore, there is an irreconcilable conflict between the act of 1889 and that of April, 1881, the last named act must be deemed to be repealed.

There is a direct repugnancy between the two acts, for it is impossible to reconcile their provisions; one or the other must give way, and, under the settled rule, it must be the earlier. By incorporating the language of section 129 of the act of March 29th, 1881, in the amendatory act of 1889, the former statute was re-enacted. The re-enactment of a statute makes the statute as re-enacted the law of the State. Sage v. State, 127 Ind. 15, 26 N.E. 667; Mayne v. Board, etc., 123 Ind. 132, 24 N.E. 80. It is impossible to escape the conclusion that the act of 1889 fixes the time for the meeting of county boards of equalization, and hence it must be held that the board convened at the proper time.

The next question is whether the appellee was entitled to notice in addition to that given of the time of the meeting of the board. It can not be doubted that some notice must be provided for by law, since there can be no due process of law where there is no notice. Kuntz v Sumption, 117 Ind. 1, 19 N.E. 474. If, however, notice is provided, and it is of such a character as to inform the taxpayer that his lists will be revised, and to give him a reasonable opportunity to be heard, the constitutional requirement is met. We think there was such notice in this case. The time for...