Jackson Hill Coal And Coke Co. v. Board of Commissioners of the County of Sullivan

• Court: Indiana Supreme Court
• Writing for the Court: Erwin, J.
• Citation: Jackson Hill Coal And Coke Co. v. Board of Commissioners of the County of Sullivan, 104 N.E. 497, 181 Ind. 335 (Ind. 1914)
• Decision Date: 13 March 1914
• Docket Number: 22,245
• Parties: Jackson Hill Coal and Coke Company v. Board of Commissioners of the County of Sullivan

104 N.E. 497

181 Ind. 335

Jackson Hill Coal and Coke Company v. Board of Commissioners of the County of Sullivan

No. 22,245

Supreme Court of Indiana

March 13, 1914

From Sullivan Circuit Court; John W. Lindley, Special Judge.

Action by the Jackson Hill Coal and Coke Company against the Board of Commissioners of the County of Sullivan. From a judgment for defendant, the plaintiff appeals.

Reversed.

John T Hays, Will H. Hays and Hinckle C. Hays, for appellant.

Charles D. Hunt and Gilbert W. Gambill, for appellee.

OPINION

Erwin, J.

This is an action begun June 7, 1909, by filing a claim before the Board of Commissioners of Sullivan County, for taxes claimed to have been wrongfully assessed against and collected from appellant, for the years 1892 and six subsequent years in the sum of $ 642.08. This claim was disallowed by the board and the petition dismissed. From the order dismissing said claim appellant appealed to the circuit court, where a demurrer to the complaint was overruled. Appellee then filed four paragraphs of answer; the first a general denial; the second a plea of the six-year statute of limitations; the third the fifteen-year statute of limitations, and the fourth a plea of voluntary payment. The first paragraph of answer was subsequently withdrawn. Appellant demurred to each of the remaining paragraphs of answer, which demurrers were overruled by the court, and appellant refusing to plead further, judgment was rendered against appellant, from which it appeals to this court, and assigns as error the rulings of the court on the demurrers to the several answers.

The correctness of the rulings of the court depends upon the construction and constitutionality of the act of the legislature for the year 1909, being chapter 60, Acts 1909 p 156, approved March 5, 1909. The statute reads as follows: "Section 1. Be it enacted by the general assembly of the State of Indiana, That in all cases where any person or persons or body politic or corporate shall appear before the board of commissioners of any county in this state, and establish by proper proof, that such person or body politic or corporate has at any time paid for any year or part thereof any amount of taxes which were wrongfully assessed against such person or body politic or corporate in such county, it shall be the duty of said board to order the amount, so proved to have been paid, to be refunded to said payer from the county treasury, so far as the same was assessed and paid for county taxes, and the county auditor shall draw his warrant therefor and the county treasurer shall pay the same out of any money not otherwise appropriated; Provided, however, That after January 1st, 1910, any such person or persons, body politic or corporate, shall be barred from recovering any such taxes further back than a period of ten years; And provided further, That it shall not be necessary for the county council to appropriate any such money ordered to be refunded, before the same shall be paid. Section 2. In all cases where a portion of the amount so wrongfully assessed and paid shall have been for state purposes, and shall have been paid into the state treasury, it shall be the duty of the said board of commissioners to certify to the auditor of state the amount so proven to have been wrongfully paid, under the seal of said board of commissioners and the auditor of state shall, thereupon, audit the same as a claim against the treasury, and the treasurer of state shall pay the same, out of any money not otherwise appropriated. Section 3. An appeal may be taken from the action of the board of county commissioners as in other cases, and if any board of county commissioners refuse to hear the proofs offered by any person or body politic or corporate, complaining or offering to complain before them, that he or it has been wrongfully assessed, the person or body politic or corporate so offering to complain shall have the same right of appeal from the decision of said board, so refusing to hear such complaint, that he or it would have in other cases, and upon either of such appeals the court to which such appeal is taken shall decide the merits of the case and order the taxes repaid or not as the case may be: Providing, That nothing in this act shall affect any pending litigation."

It is the settled law of this State that taxes voluntarily paid or paid under protest cannot be recovered without some statute authorizing the recovery. Newsom v. Board, etc. (1883), 92 Ind. 229; Newsom v. Board, etc. (1885), 103 Ind. 526, 3 N.E. 163; City of Indianapolis v. McAvoy (1882), 86 Ind. 587; City of Indianapolis v. Vajen (1887), 111 Ind. 240, 12 N.E. 311; Durham v. Board, etc. (1883), 95 Ind. 182; Nyce v. Schmoll (1907), 40 Ind.App. 555, 82 N.E. 539; Simonson v. Town of Harrison (1892), 5 Ind.App. 459, 32 N.E. 585; Board, etc. v. Senn (1888), 117 Ind. 410, 20 N.E. 276; Dubois v. Board, etc. (1891), 4 Ind.App. 138, 30 N.E. 206; Donch v. Board, etc. (1891), 4 Ind.App. 374, 30 N.E. 204; Board, etc. v. Crone (1905), 36 Ind.App. 283, 75 N.E. 826; Lima Tp. v. Jenks (1863), 20 Ind. 301. The question presented by the ruling on the demurrer to the fourth paragraph of answer is, Does the act of March 5, 1909, supra, authorize the recovery of taxes voluntarily paid? The statute in question reads, "That in all cases where any person or persons * * * shall appear before the board of commissioners * * * and establish by proper proof that such person * * * has at any time paid for any year or part thereof any amount of taxes which were wrongfully assessed against such person, or body politic or corporate in such county." We are of the opinion that the statute in question does authorize the recovery of taxes erroneously paid whether paid voluntarily, or otherwise, hence the court erred in overruling the demurrer to the fourth paragraph of answer.

The ruling on the demurrer to the second and third paragraphs of answer which plead the statutes of limitations presents the question whether the legislature has the power to enact a law removing all limitation as to bringing actions of this kind. It must be conceded that the bar to all actions at law or suits in equity comes from the legislature, and that without legislation on that subject, no right of action is barred. By the common law there was no fixed time for the bringing of actions. 25 Cyc. 985 --note 17. Missouri v. Illinois (1906), 200 U.S. 496, 26 S.Ct. 268, 50 L.Ed. 572.

It is argued by counsel for appellee that the statute in question is void and contrary to § 24 of the Bill of Rights being Art. 1, § 24, Constitution of Indiana, in that it impairs the obligation of contracts. Any right bestowed by legislation can be taken away except such as affects vested interests in real or personal property. Mc Eldowney v. Wyatt (1898), 44 W.Va. 711, 30 S.E. 239, 45 L. R. A. 609; Watson v. Mercer (1834), 8 Peters *88, 8 L.Ed. 876; Charles River Bridge v. Warren Bridge (1837), 11 Peters *420, 9 L.Ed. 773; DeMoss v. Newton (1869), 31 Ind. 219; State v. City of Seattle (1910), 57 Wash. 602, 107 P. 827, 27 L. R. A. (N. S.) 1188; State, ex rel. v. Swope (1855), 7 Ind. 91; Roush v. Morrison (1874), 47 Ind. 414; Wood, Limitations 74-76. A statute of limitations is remedial and does not extinguish the debt. Cassell v. Lowry (1904), 164 Ind. 1, 4, 72 N.E. 640, and cases cited; Townsend v. Jemison (1850), 50 U.S. 407, 9 HOW 407, 13 L.Ed. 194. The precise question here is, Has the legislature authority to remove the bar to the recovery of taxes improperly paid, and authorize a recovery, after the same has been barred by a former statute of limitations, and so revive the action? It has been held in a number of cases in this State that it has no power to revive a cause of action barred by the statute of limitations. McKinney v. Springer (1847), 8 Blackf. 506; Stipp v. Brown (1851), 2 Ind. 647; Right v. Morten (1858), 11 Ind. 123. In the case of McKinney v. Springer, supra, Blackford, J., in citing Ogden v. Blackledge (1804), 2 Cranch *272, 2 L.Ed. 276, says, "In that case the statute of limitations being pleaded, the court decided that the statute was no bar, the same having been repealed before the time limited by it, had elapsed. The decision seems to imply, that if the time had expired before the repeal of the act, the suit would have been barred." The court held in that case, that the statute of limitations which had subsequently been repealed, had not entirely run, and hence the plea that the claim was barred by the statute of limitations, before the repeal of the law, was not available, and decided that the question whether the repeal of the statute of limitations, after a...