Jenks v. Lima Township

• Court: Indiana Supreme Court
• Writing for the Court: Perkins, J.
• Citation: Jenks v. Lima Township, 17 Ind. 326 (Ind. 1861)
• Decision Date: 09 December 1861
• Parties: Jenks v. Lima Township

17 Ind. 326

Jenks v. Lima Township

Supreme Court of Indiana

December 9, 1861

APPEAL from the Lagrange Circuit Court.

The judgment is reversed, with costs. Cause remanded.

J. M Flagg, for the appellant.

A Ellison, for the appellee.

OPINION

Perkins J.

The plaintiff filed the following complaint with a justice of the peace:

"Nathan Jenks complains of Lima township, in the county of Lagrange, and State of Indiana, and says, that at a special election in said township, on the day of -----, 1853, the proposition was submitted to the voters of said township, to assess a special tax upon the tax payers of said township, for common school purposes therein; that they voted in favor of such assessment, and the trustees thereupon assessed, or caused to be assessed, the sum of thirty cents on each hundred dollars of valuation of property therein, and fifty cents poll tax; that the plaintiff's tax, in consequence of said assessment, was eighty dollars; that the same was placed upon the duplicate of taxes for said county, and delivered to the treasurer thereof, to be collected; and that the treasurer collected the same, and paid it over to the township. The plaintiff, also, says that such vote, levy and assessment of said special tax, was erroneous, illegal, unconstitutional and void; and that he suffered damages, in consequence thereof, to the amount of eighty dollars, for which sum he demands judgment, and other proper relief.

"James M. Flagg, Attorney for Plaintiff."

The tax described in the complaint was illegal. The City of Lafayette v. Jenners, 10 Ind. 70. On appeal to the Circuit Court, the cause was dismissed for want of a sufficient complaint.

We think the Court erred in dismissing the cause. The complaint would not have been sufficiently certain, had the suit been commenced in the Circuit or Common Pleas Court, in showing that the tax had been forcibly collected; but, according to immemorial usage in this State, we think a forcible collection might have been proved under the complaint, and that it is sufficiently certain, being in an action commenced before a justice of the peace.

An illegal tax, voluntarily paid, can not be recovered back and the payment is regarded as voluntary, unless it be made to procure the release of person or property from the power of the officer; and protest, at the time of payment, in connection with other circumstances, may be evidence that the payment is made for such purpose. This is the rule in England. Oates v. Hudson, 5...