Lutz v. Arnold
| Decision Date | 29 January 1935 |
| Docket Number | 26,406,26,343,26,352 |
| Parties | Lutz, Attorney-General et al. v. Arnold, Attorney and Trustee et al. Muncie Finance Company v. Walsman et al. Hamer v. Wise, County Assessor, et al |
| Court | Indiana Supreme Court |
No 26,406. From St. Joseph Superior Court; J. Fred Bingham, Judge.
No 26,343. From Delaware Superior Court; Robert F Murray, Judge.
No. 26,352. From Huntington Circuit Court; Sumner Kenner, Judge.
Action by Walter R. Arnold, as attorney and trustee for A. P. Callahan Company, against Frank N. Nevins and another for a declaratory judgment, wherein Philip Zoercher and others, comprising the Indiana State Tax Board, filed an intervening petition; separate action by Muncie Finance Company against Albert Walsman and others for injunction; and a separate action by William D. Hamer against Claude Wise, county assessor of Huntington county, and others for injunction. Each of said causes questioned the constitutionality of the Intangibles Tax Law of 1933. From a judgment for plaintiff in cause No. 26,406, defendants appealed. From judgments for defendants in the other causes the plaintiffs took separate appeals. All were consolidated for argument and disposal.
Affirmed as to No. 26,406; reversed as to Nos. 26,343 and 26,352.
No. 26,406. Philip Lutz, Jur., Attorney-General, Edward Barce and Joseph W. Hutchinson, Assistant Attorneys-General, for appellants.
Roland Obenchain, William Cain, D. M. Shively, Walter R. Arnold, Joseph Hemphling, and George L. Rulison, for appellees.
No. 26,343. F. Clayton Mansfield, for appellant.
Philip Lutz, Jr., Attorney-General, Joseph W. Hutchinson, Assistant Attorney-General, William H. Bales, Myron H. Gray, Leo M. Gardner, William C. Harrison, and William F. White, for appellees.
No. 26,352. Claude Cline, Emmett O. King, Harry Taylor, and Emsley W. Johnson, for appellant.
Philip Lutz, Jr., Attorney-General, Edward Barce and Joseph W. Hutchinson, Assistant Attorneys-General, Otto H. Krieg, Myron H. Gray, Leo M. Gardner, William C. Harrison, and William F. White, for appellees.
Causes numbered 26,406, 26,343 and 26,352 relate to chapters 81, 82, and 83 of the Acts of 1933, being the intangible tax law. These causes were consolidated for the purpose of argument and we are consolidating them for the purpose of disposing of all questions raised in different causes. The greater part of all questions presented in the different causes are the same.
In cause No. 26,406, the nature of the action, as stated by appellants, is as follows: This is an action brought originally by Walter R. Arnold as trustee and attorney for A. P. Callahan Company v. Frank N. Nevins as clerk of the St. Joseph Superior Court No. 1, St. Joseph County, Indiana, and Adrian Ross, seeking a declaratory judgment declaring chapter 81 of Acts of 1933, known as the general intangibles tax act of 1933, to be unconstitutional and void. The complaint was predicated upon the allegation that the plaintiff was the owner of a judgment upon a promissory note made to the plaintiff in plaintiff's capacity as attorney and trustee for A.P. Callahan Company and taken in payment of an indebtedness upon contracts of sale of merchandise from A. P. Callahan Company to the defendants Ross in interstate commerce. It was alleged that this judgment was entered in St. Joseph Superior Court on February 26, 1931. That on the 27th day of July, 1932, the plaintiff caused an execution to be issued, which execution was returned unsatisfied at the expiration of 180 days and that on the 30th day of March, 1933, the plaintiff applied for an alias execution and then and there the defendant clerk declared and maintained that no execution could issue upon the judgment to satisfy the judgment or any part thereof until and unless there was paid by way of adhesive stamps in denominations in the aggregate equivalent to five cents on each twenty dollars or fractional part of said judgment in the judgment docket or some other evidence was presented to the clerk to satisfy him that the tax under and by virtue of chapter 81 of the Acts of the General Assembly for the year 1933 had been paid and satisfied in reference to said judgment.
Thereafter, the above named appellants, Philip Zoercher, Albert F. Walsman, and Gaylord S. Morton, as and constituting the State Board of Tax Commissioners, filed their petition to intervene and be made parties defendant, which petition was granted by the court.
Thereafter, the appellees, Thomas and Thomas, as resident freeholders, citizens, and voters of Portage township, St. Joseph county, Indiana, filed their complaint against the above named State Board of Tax Commissioners and others seeking a declaratory judgment. The complaint was based upon the theory that the plaintiffs are resident freeholders, citizens, and voters of said township and county and owners of real estate in said township and county, which tangible personal and real estate are liable to the payment of taxes assessed against said real estate and tangible personal property. This complaint alleges the constitutionality of chapters 81, 82, and 83 of the Acts of the General Assembly of 1933, except that the plaintiffs allege that sections 31 and 32 of chapter 81 and section 9 of chapter 82 and sections 16 and 19 of chapter 83 of the Acts of 1933 are unconstitutional and void.
The appellee Rulison filed his complaint against the State Board of Tax Commissioners and others also seeking declaratory judgment holding chapter 81 of the Acts of the General Assembly of 1933 inapplicable to postal savings deposits and, if applicable, holding that said act is unconstitutional and void.
The appellee Lehman filed an intervening petition asking to be joined as a party in said cause. The petition was granted and was considered as the complaint of said Lehman. This complaint or petition was based upon the general allegation that the plaintiff or petitioner was the owner of real estate and tangible personal property, exclusive of money on deposit in banks and trust companies, subject to assessment for taxation in Portage township, St. Joseph county, Indiana. This petition sought the judgment of the court declaring chapters 81, 82, and 83 unconstitutional and invalid.
The State Board of Tax Commissioners filed demurrers to each of the complaints, which were overruled. Answers and replies were filed, evidence heard, and the court entered judgment declaring all of said laws to be unconstitutional. Motion for new trial overruled.
The errors relied upon for reversal in cause No. 26,406 are as follows: (1) The court erred in overruling the demurrer of said appellants, defendants below, to the complaint of Walter R. Arnold, as attorney and trustee for A. P. Callahan Company; (2) the court erred in overruling the demurrer of said appellants, defendants below, to the amended complaint of the appellees, Thomas and Thomas; (3) the court erred in overruling the demurrer of said appellants, defendants below, to the complaint of the appellee, Rulison; (4) the court erred in overruling the demurrer of said appellants to the complaint of appellee, Lehman; (5) the court erred in overruling the motion of said appellants for a new trial.
In cause No. 26,343 the plaintiff, Muncie Finance Company, brought an action for injunction against the defendants. The plaintiff alleges that it is a corporation and the owner of real and personal property in the city of Muncie, Center township, Delaware county, Indiana, and prays that the defendants, the taxing officials of said township, county, and state, be enjoined and restrained from carrying out, performing, or enforcing any provisions of chapter 81 of the General Assembly of 1933, and that said defendants be ordered and enjoined to assess for taxation and place and cause to be placed on the tax duplicate of the city of Muncie for taxation all of the annual intangibles mentioned in clause 6 of said act. The defendants filed a demurrer to said complaint, which demurrer was sustained by the court. The plaintiff, refusing to plead further, judgment was rendered against plaintiff and plaintiff appealed from said judgment. The assignment of errors is as follows:
1. The court erred in sustaining the demurrer of appellees W. Max Shaffer as county auditor of Delaware county, Indiana, Joseph T. Meredith as county treasurer of Delaware county, and Pearl C. Hopkins as county assessor of Delaware county to appellant's complaint.
2. The court erred in sustaining the demurrer of Philip Zoercher, Albert F. Walsman, Gaylord S. Morton, as members of the State Board of Tax Commissioners to appellant's complaint.
In cause No. 26,352 the appellant brought an action on April 3, 1933, in the Huntington Circuit Court against the appellees, Claude Wise, as assessor of Huntington county, Ned F. Brown, county auditor, Eldon T. Lawver, county treasurer of said county, and the members of the State Board of Tax Commissioners, alleging that appellant was a resident of the city of Huntington, Huntington county, Indiana, and the owner of real estate and of personal property each of value of more than $ 500.00 on March 1, 1933. That pursuant to chapter 81 of the General Assembly of 1933 the appellees were attempting to act and proceed in the assessment of property in said Huntington county, in connection with other laws in force in the state providing for the assessment and collection of taxes.
Plaintiff alleges that said act is unconstitutional and prays that each of said appellees be enjoined from carrying out or exercising any of the duties or functions as prescribed by said act with...
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