Kramer v. Beebe, 23056.

• Docket Nº: No. 23056.
• Citation: 115 N.E. 83, 186 Ind. 349
• Case Date: February 13, 1917
• Court: Supreme Court of Indiana

186 Ind. 349
115 N.E. 83

KRAMER et al.
v.
BEEBE, County Treasurer.

No. 23056.

Supreme Court of Indiana.

Feb. 13, 1917.

Appeal from Circuit Court, Madison County; Luther F. Pence, Judge.

Suit by Joseph Kramer and others against George Beebe, County Treasurer. From a judgment for defendant, plaintiffs appeal. Reversed, with directions.

Milton L. Clawson, of Indianapolis, for appellants. Kittinger & Daven, of Anderson, for appellee.

MYERS, J.

Appellants brought this suit on their own behalf, and, as they allege, on behalf of 200 other persons similarly interested and situated, to restrain appellee, as treasurer of Madison county, from levying upon and selling their household goods for the payment of delinquent taxes. A demurrer was sustained to the complaint, and from a judgment in favor of appellee, appellants appeal to this court.

In support of this appeal appellants rest their case on two propositions: (1) that section 119 (Acts 1895, p. 319) of the Fee and Salary Law, as amended in 1897 (Acts 1897, p. 171; section 7332, Burns 1914), is controlling. (2) That this section is constitutional, and a valid exercise of the legislative power. The latter claim is not controverted by appellee, nor does he attempt to sustain the judgment of the lower court upon that theory; but he does insist that section 153, p. 199, Acts 1891, an act concerning taxation, as amended in 1903 (Acts 1903, p. 49, § 21; section 10324, Burns 1914), repealed section 7332, supra, and that now “there is no statute of this state which exempts household goods or furniture from levy and sale in any amount or under any condition, by the county treasurer to satisfy delinquent taxes assessed against the owner thereof.”

The question then is: Was section 7332, supra, repealed by section 10324, supra? From an examination of these legislative enactments it appears that section 153 was a part of the act of 1891. Acts 1891, p. 199. The amendatory act (1903) had a general repealing

[115 N.E. 84]

clause (section 39): “All laws and parts of laws in conflict with the provisions of this act are hereby repealed.” It will also be observed that the act of 1895, in section 138, expressly provides that: “All laws and parts of laws in conflict with this act, are hereby repealed to the extent of such conflict.”

The act of 1891, supra, is entitled “An act concerning taxation, repealing all laws in conflict therewith, and declaring an emergency.” The title of the act of 1903, supra, expressly states that it is amendatory of certain sections of the act of 1891, among which is section 153. The act of 1895 is entitled “An act fixing the compensation and prescribing the duties of certain state and county officers, fixing certain fees,” etc., and is known as the Fee and Salary Act.

Section 119 of this act was re-enacted in 1897, word for word, except that the commission which the treasurer shall receive was changed from 4 per cent. to 6 per cent. It is also noticeable that section 119 and section 153 are word for word the same, except that in section 119 the following is omitted:

“And the treasurer shall, if he have reason to believe that such delinquent have money, effects, or other property in his possession or on deposit that can be reached by any remedy known to the law, make known such facts to the prosecuting attorney who shall cause such proceedings to be brought as will secure the payment of such delinquency and for his services in so doing shall receive ten per cent. of such money so collected and a docket fee of ten dollars to be taxed as costs in such action and paid out of moneys so collected.”

And in place of the part omitted is the following:

“Provided, however, that nothing in this section shall authorize the treasurer in any county in this state to levy upon or sell for delinquent taxes the household goods of any person, where the household goods of such person do not exceed the value of one hundred dollars, as shown by the assessment list of said person for the year for which said taxes are delinquent. Each county treasurer shall be allowed, in addition to the salary provided by this act, a commission of six per cent. upon all delinquent taxes collected by him.”

Both sections 153 and 119, as also section 21 of the amendatory act, have to do with certain duties of the treasurer concerning the collection of delinquent taxes out of personal property, and authorizing the collection of his costs, certain fees and commissions therefor. The amendatory section 21 amended section 153 only by changing the time when the treasurer should cause a list to be made of the delinquents from “after the third Monday of April,” to “after the first Monday of May,” and his fee from 25 cents to 50 cents when the delinquent pays upon demand, and from 50 cents to 75 cents when he pays after a levy is made.

[1] It may be inferred from the action of the Legislature in amending section 153 that it regarded this section still in force, but if, as a matter of fact, it had been repealed by section 119 of a subsequent act, the supposition of the Legislature can make no difference, for it is the province of the court to say what effect the last expression of the Legislature had on the first, involving the same subject. District of Columbia v. Hutton (1891) 143 U. S. 27, 12 Sup. Ct. 369, 36 L. Ed. 60.

From what has been said, it will be observed that to a large extent the two sections (153, supra, and 119, supra) cover practically the same ground, except in the former the treasurer is to acquaint the prosecuting attorney with certain facts, and in the latter he is prohibited from levying upon and selling certain personal property designated as “household goods” where the value of the same, as fixed by the assessment, does not exceed $100. While this latter act might be considered munificent in character, and not quite in line with the thought and policy of the state making it the duty of all persons to bear their share of the public burdens necessary for the due administration of public affairs and for the protection of the rights and privileges which the government affords them, yet there is another side to this question equally important, and in which the state is equally interested; that is to say, under certain conditions and circumstances she furnishes her people food and...