Peden v. Board of Review of Cass County

• Decision Date: 12 April 1935
• Docket Number: 26,306
• Citation: 195 N.E. 87,208 Ind. 215
• Parties: Peden et al. v. Board of Review of Cass County
• Court: Indiana Supreme Court

195 N.E. 87

208 Ind. 215

Peden et al. v. Board of Review of Cass County

No. 26,306

Supreme Court of Indiana

April 12, 1935

From Cass Circuit Court; George A. Custer, Judge.

Petition by Leah E. Peden and others filed with the county board of review for a reduction of appraisement of petitioners' property for tax purposes. From the decision of the board of review, petitioners appealed to the circuit court, and from an adverse judgment therein, they appealed to the Supreme Court.

Affirmed.

Thomas J. Peden, John S. Lairy, Thomas C. Bradfield, and George A Gamble, for appellants.

Hillis & Hillis, for appellee.

OPINION

Hughes J.

The appellants filed their written complaint or petition June 25, 1932, with the Cass county board of review then in session, in which complaint or petition they alleged that the amount of the appraisement made for tax purposes was in excess of the actual cash value of said real estate. The appellee, board of review, gave appellants a hearing on their petition July 1, 1932, and denied the reduction asked for except to the extent of $ 850.

The appellants appealed from the decision of the board of review to the Cass Circuit Court. The county auditor of Cass county, pursuant to section 14191.1, Burns Supp. 1929, § 64-1020, Burns 1933, § 15686, Baldwin's 1934, prepared and filed a transcript of the proceedings had before said board of review in the Cass Circuit Court on July 25, 1932, as a cause of action pending therein on appeal thereto from the decision of the board of review.

The appellee filed a demurrer to the complaint or petition of the appellants on the grounds: (1) For want of jurisdiction of the court of the subject matter of appellants' action, and (2) for want of facts alleged in the complaint or petition to constitute a cause of action.

The demurrer was sustained and, the appellants refusing to plead further, judgment was rendered for appellee.

The errors relied upon for reversal are as follows: (1) The court erred in sustaining appellee's demurrer to the complaint of appellants for want of jurisdiction; and (2) the court erred in sustaining appellee's demurrer to appellants' complaint for want of facts and rendering judgment on demurrer.

Section 14191.1, Burns Supp. 1929, § 64-1020, Burns 1933, § 15686, Baldwin's 1934, Acts 1927, ch. 91, sec. 2, p. 233, upon which this appeal is predicated is as follows:

"The owner of any property hereafter assessed for taxation, or against or on which any tax may be sought to be collected, shall have the right of appeal from the action of the county board of review or any other board authorized to fix the value of property for taxation, including the state board of tax commissioners, to the circuit or superior court of the county in which said property is situated. Appeals may be consolidated, at the request of the appellants, in order to save the expenses thereof when it can be done in the interest of justice, such appeals to be taken by filing a written notice, asking for such appeal, with the board of review or the state board of tax commissioners, as the case may be, at any time within ten (10) days from and after said county board of review or said state board of tax commissioners finally make and adopt said valuation, fixing the value of any such property for purposes of taxation. Upon such appeal being asked for, it shall be the duty of the county auditor, in the case of appeals from the county board of review, and the secretary of the state board of tax commissioners, in cases of appeal from said state board, to make out and certify to a complete transcript of the proceedings, not including the evidence, had with respect to the property of the person so appealing and transmit the same to the clerk of the circuit or superior court in the county in which said property is located, designated by the appellant. Such appeal shall be tried by the court without the intervention of a jury, and said trial of such issue shall be governed by the laws governing civil actions."

The complaint of appellants, omitting caption and description of the real estate, is as follows:

"That said real estate has been appraised by the assessor of Eel Township, Cass County, Indiana, for the purpose of taxation, as follows: $ 8,350.00 on the land; $ 7,500.00 on the improvements, making a total value of said real estate for the purpose of taxation the sum of $ 15,850.00. That the above described real estate is appraised for the purpose of taxation in excess of its actual cash value, and thereby a great hardship is worked upon said owners thereof.

"Wherefore your petitioners respectfully pray that the appraisement of said real estate for the purpose of taxation in the discretion of the board be reduced to its actual cash value."

It is the theory of the appellants that under the law, as above set out, they had the constitutional right to appeal from the board of review to the Cass Circuit Court, and have that court hear and determine the value of their property for the purpose of assessment. The appellee denies this power of the court over assessments, and contends that the power of taxation belongs exclusively to the legislative department of government, and is not a judicial function; and therefore the aforesaid provision of the taxing law is unconstitutional.

If the contention of appellants is tenable, then the courts are clearly made assessing officers, not as an incident to some judicial function, but independent thereof. We can not assent to this theory of the law. There is a proper place, to which we will refer later, in the scheme of taxation for our courts, but not to the extent that they become assessing officers.

Section 1, Art. 3, of the Constitution of Indiana provides:

"The powers of the Government are divided into three separate departments; the Legislative, the Executive, including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided."

As early as 1856, Wright v. Defrees and Others, 8 Ind. 298, 302, it was held that, "The powers of the three departments are not merely equal, -- they are exclusive, in respect to the duties assigned to each. They are absolutely independent of each other." This being true, it is obvious that the power, duties and office of the assessing powers, which is a legislative and administrative function, can not bodily be transferred to the judicial department of the government where no judicial question is involved. If, under the section of the act in question, any taxpayer who feels that his property is assessed too high may, for this reason alone, appeal to the circuit court, and there have a reappraisement made, then under such a construction of the law it would clearly appear that the courts would, in effect, become assessing officers where no judicial question was involved, and invade another department of government, although distinctly prohibited by the Constitution. If one taxpayer who believes that his property is valued in excess of its cash value may appeal and have the court fix the value, then every taxpayer of the taxing district who believes likewise may appeal, and, in densely populated taxing districts, the entire time of the court would be taken in making assessments and fixing values, where no judicial questions were involved, but merely questions relating to legislative and administrative functions.

The taxing power is a legislative function, and the fixing of levies, the assessment of property and collection of taxes is generally considered and spoken of as administrative action which is an incident of the legislative power. As said in the case of Symns v. Graves (1902), 65 Kan. 628, 636, 70 P. 591:

"Matters of assessment and taxation are administrative in their character and not judicial, and an interference by judges who are not elected for that purpose with the discharge of their duties by those officers who are invested with the sole authority to make and estimate value is unwarranted. The district court could not substitute its judgment for that of the board of equalization and this court can not impose its notion of value on either."

In the case of Silven v. Board of County Commissioners (1907), 76 Kan. 687, 92 P. 604, we find a state of facts practically the same as presented in the instant case. The law of Kansas provided that an owner of real estate might appeal from the equalization board relative to the taxable value of his real estate to the district court. The trial court held that the act attempted to make the district courts share in the exercise of the taxing power and to confer upon the courts legislative and administrative functions with which they could not be constitutionally vested. In passing upon the question involved the court said (p. 689):

"The power of taxation is a legislative function. It is the province of the legislature to determine the subject and extent of taxation, and to provide the means and agencies for enforcing it. In the absence of constitutional restrictions, the taxing power of the legislature is supreme and complete, and nothing in that instrument justifies a division of that power with the judiciary. Of course, if the legislature should violate a constitutional limitation in the enactment of a tax law, the judicial power of the courts might be invoked to determine its validity and prevent its enforcement. And, if the officers or agencies provided by the legislature for administering the tax laws were not proceeding in a legal manner, their hands might be stayed by appropriate proceedings in court; and it is doubtless competent for the legislature to provide that any invalidity in tax

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