Langenberg v. Decker

• Decision Date: 10 May 1892
• Docket Number: 16,373
• Citation: 31 N.E. 190,131 Ind. 471
• Parties: Langenberg v. Decker
• Court: Indiana Supreme Court

31 N.E. 190

131 Ind. 471

Langenberg v. Decker

No. 16,373

Supreme Court of Indiana

May 10, 1892

From the Marion Superior Court.

Judgment affirmed.

A. G Smith, Attorney General, for appellant.

A. C Harris, T. A. Stuart, W. V. Stuart, C. B. Stuart, W. A Ketcham, S. O. Pickens, S. N. Chambers, C. W. Moores, A. Zollars, N. O. Ross, J. T. Dye, J. M. Butler, A. H. Snow and J. M. Butler, Jr., for appellee.

OPINION

Coffey, J.

The General Assembly of the State passed an act, which was approved and went into force on the 6th day of March, 1891, entitled "An act concerning taxation, repealing all laws in conflict herewith, and declaring an emergency."

The act creates a State Board of Tax Commissioners, composed of five persons, viz., the Secretary of State, the Auditor of State, and the Governor of the State, who are styled ex officio members, and two persons of opposite political faith appointed by the Governor of the State. At the time the matters occurred, out of which this suit arose, the board was composed of the Secretary of State, the Auditor of State, the Governor of the State, Josiah N. Gwin and Ivan N. Walker.

By the provisions of the act the Governor of the State is the chairman of the State Board of Tax Commissioners.

Section 129 of the act provides that this board shall annually convene in the office of the Auditor of State on the first Monday of August each year for the purpose of assessing railroad property and equalizing the assessment of real estate; that it shall not be bound by any reports or estimates of value of railroad property, real estate or other property, as returned to the county auditors or to the Auditor of State, but shall appraise and assess all property at its true cash value, as defined by the act, according to its best knowledge and judgment, and so equalize the assessment of property throughout the State. It also contains this provision: "They shall have the power to send for persons, books and papers, to examine records, hear and question witnesses, to punish for contempt any one who refuses to appear and answer questions, by fine not exceeding one thousand dollars, and by imprisonment in the county jail of any county not exceeding thirty days, or both. Appeals shall lie to the criminal court of Marion county from all orders of the board inflicting such punishment, which appeals shall be governed by the laws providing for appeals in criminal cases from justices of the peace so far as applicable. The sheriffs of the several counties of the State shall serve all process and execute all orders of the board."

Claiming to act under the power and authority conferred upon it by the provisions of this statute, the State Board of Tax Commissioners, on its own motion, caused a subpoena duces tecum to be issued to all the banks in the State, requiring the president, cashier and book-keeper, or either of them, of the bank named in the subpoena, to appear before the board, at the office of the State Board of Tax Commissioners, in the State-House in the city of Indianapolis, on a day named in the subpoena, and to bring and have with them, then and there, such books, papers and accounts of such banking institution as should fully disclose and show the names of all persons having money, bonds, stocks, notes or other property of value on deposit and in the custody of such bank on the 1st day of April, 1891, and the respective amounts of such deposits or other property in the custody of the bank, and to answer all questions which might be asked in relation thereto, or with reference to the property owned by the bank itself. The subpoena was signed by Joseph T. Fanning, as secretary of the board.

At the bottom of the subpoena, and following the signature of the secretary, was the following:

"For the purposes of the State Board of Tax Commissioners, as set forth in this subpoena, it will answer if the president, cashier or book-keeper of the above mentioned bank make out a sworn statement of the balances to the credit of its individual depositors on April 1st, 1891, giving name in full of each depositor, amount of his credit balance, and forward said sworn statement to the State Board of Tax Commissioners without delay."

One of the subpoenas was served upon the appellee, at the city of Evansville, where he resides, and where he is vice-president of a State bank known as the German Bank of Evansville. In answer to the subpoena he appeared before the State Board of Tax Commissioners on the 25th day of August, 1891, when there was present of the members of the board the following persons, and no others, viz.: Claude Matthews, Secretary of State, acting as president of the board; J. O. Henderson, Auditor of State, and Ivan N. Walker.

Upon his appearance he was duly sworn, when the following proceedings were had, viz.:

"Question. State your name and place of residence? Answer. Phillip C. Decker; I reside in the city of Evansville.

"Q. In what business are you engaged? A. That of banking.

"Q. With what institution are you engaged, and in what capacity? A. I am vice president of the German Bank of Evansville, Indiana; the president lately died and I am acting as president. Our bank was organized under the laws of Indiana.

"Q. State the aggregate amount of the individual deposits held by the German Bank of which you are vice-president on the 1st day of April, 1891. A. About $ 300,000.

"Q. Give the amount of money held on deposit by said bank on the 1st day of April, 1891, belonging to some one depositor.

"The witness: Before answering the question I respectfully ask the board whether there is any appeal, complaint, suit or proceeding of any kind pending before this board or elsewhere to assess any depositor, or to revise his tax list in any manner."

By the board: "No; we are exercising the power of discovery."

The witness: "I decline to answer, under the advice of counsel, either as to the name of any depositor or the amount of his deposit."

"Q. Give me the amount of personal property, other than money, held by your bank, as custodian or agent, on the 1st day of April, 1891, such as notes, stocks, bonds or other property of value belonging to any one depositor?" A. "I respectfully ask the board to state, before an answer to the question just put, whether there is any appeal, complaint, cause or proceeding of any kind pending before this board or elsewhere to assess the property of said bank or any partner therein."

Answer by the board: "No."

The witness: "I decline to do so, under advice of counsel."

"Q. For the purpose of ascertaining what, if any, money on deposit in your institution, belonging to persons, firms, companies or corporations, has been omitted purposely or otherwise from the tax duplicate of Vanderburgh county. You will please give this board a list of the names of your depositors on the 1st day of April, 1891. A. I most respectfully decline to give such list, having just been informed by the board that no appeal, complaint, suit or proceeding is here pending before this board or elsewhere, to assess or revise the tax list of any depositor, or partner, or officer of the bank.

"Q. For the purpose above indicated, give a list of depositors on the 1st day of April, 1891, with the several amounts of money to their credit on that day. A. I decline to give either the names of my depositors or the several amounts standing to their credit, respectively, on the 1st day of April, 1891, either for taxes or for any other purpose, because I am now informed by the board that there is no appeal, complaint, suit or proceeding pending here or elsewhere to assess or revise the tax list of any depositor.

"Q. Likewise give us the names of all persons who have property other than money, stocks, bonds, jewelry or other property of value by said German bank held as custodians on the first day of April, 1891, and the several amounts, with a description and value of such property. A. I decline to answer your questions for the reasons given above.

"Q. By an examination of the books and papers of said bank would you, as its vice-president, be able to furnish to this board the information asked for in the foregoing question? A. I would not.

"Q. You are now commanded to produce such books and papers of the German bank for the inspection of this board as will fully afford the information herein sought to be obtained, and which will discover the names of the depositors of said German bank on the 1st day of April, 1891, and the several amounts to their credit; also, such books as will show the names and description of the property of value held by said bank as custodian and agent on said day. A. As vice-president of said bank I now decline to produce any of its books or papers for the inspection of this Board for any purpose."

Thereupon the State Board of Tax Commissioners, because of the refusal of the appellee to appear and answer the questions above set forth, and to give the information thereby sought to be elicited, assessed against him a fine of five hundred dollars, and that he stand committed until the fine be paid or replevied, and entered the following judgment: "Therefore, it is considered and ordered by the State Board of Tax Commissioners that Philip C. Decker, on account of his refusal to appear and answer questions, and his disobedience to the order of this board, be and hereby is fined in the sum of five hundred dollars ($ 500), and it is further considered by the board that said Philip C. Decker do stand committed to the jail of Marion county, Indiana, until said fine be paid or replevied."

Upon entering the foregoing judgment the secretary of the board delivered to the appellant, as the sheriff of Marion county a commitment reciting the fact that the appellee had...