Saint v. Welsh

• Decision Date: 28 May 1895
• Citation: Saint v. Welsh, 141 Ind. 382, 40 N. E. 903 (Ind. 1895)
• Parties: SAINT, County Treasurer, v. WELSH.
• Court: Indiana Supreme Court

141 Ind. 382

40 N.E. 903

SAINT, County Treasurer,

v.WELSH.

Supreme Court of Indiana.

May 28, 1895.

Appeal from circuit court, Henry county; E. H. Bundy, Judge.

Action by Josiah A. Welsh, executor of Joseph Welsh, against Albert W. Saint, county treasurer, to enjoin him from collecting certain taxes.From a judgment perpetually enjoining the collection, defendant appeals.Reversed.

Adolph Rogers, for appellant.M. E. Forkner and L. P. Mitchell, for appellee.

JORDAN, J.

Appellee, as the executor of the will of Joseph Welsh, deceased, commenced this action to enjoin appellant, the treasurer of Henry county, Ind., from collecting from said estate taxes arising out of certain personal property, said to have been omitted by testator from his tax returns for the years 1885, 1886, 1887, 1888, 1889, and 1890, and which the county assessor had added to the tax duplicate under the provisions of the tax law of 1891.Issues were joined in the court below between the parties, by an answer in denial upon appellant's part, and a trial resulted in the court perpetually enjoining the collection of the controverted taxes.Appellant has assigned and presents for our consideration the following errors: (1) Overruling demurrer to the complaint; (2) sustaining demurrer to second paragraph of answer; (3) overruling motion for a new trial.

The questions involved in this appeal in the main have been determined and settled adversely to appellee in the case of Reynolds v. Bowen, 137 Ind. ---, 36 N. E. 756.The learned counsel for appellee, however, insists that the decision of this court in that case is in conflict with a long line of decisions in this state, and we are respectfully requested to reconsider that decision.Among the cases cited by counsel for appellee, which they contend are in conflict with Reynolds v. Bowen, supra, are the following: Florer v. Sherwood, 128 Ind. 495, 28 N. E. 71;Woll v. Thomas, 1 Ind. App. 232, 27 N. E. 578.These cases were considered in the Reynolds decision, and it was there said by the court: “We do not understand that these cases go any further than to hold that, under the tax law of 1881, the county auditor, acting under his general authority to assess omitted property, has no right to increase the valuation of property returned by the assessor.”Some of the other decisions cited and relied upon by appellee state the same rule, while others are those wherein it was held, under former tax laws, more narrow in their provisions than the act of 1891, that the auditor was not authorized to assess omitted property, except for the current year.Under the questions involved in the Reynolds.Bowen Case, arising out of a construction of the tax law of 1891, the cases cited and referred to by appellee are not applicable, and we fail to recognize any existing conflict between these and the former.The decision, therefore, in Reynolds v. Bowen, supra, upon further consideration, still meets with the approval of this court.The complaint in the case at bar, among other things, alleges the death of appellee's decedent, on July 24, 1890, at the county of Henry, state of Indiana.That at the date of his death he was the owner and possessor of at said county a large amount of personal goods, chattels, and choses in action, all of which, after the death of the decedent, came into the hands of appellee as such executor, and that he still holds the same, except such as has been distributed to the legatees and paid out for expenses, etc.That, after the 1st day of April of the years of 1885, 1886, 1887, 1888, 1889, and 1890, said decedent listed and returned his property to the assessor of the township in which he resided.That after his death plaintiff listed and returned for taxation to the proper assessor all of the personal property coming into his hands.That decedent, while in life, paid all taxes assessed in respect to the property returned by him for taxation as aforesaid.That after decedent's death, on October 2, 1891, one Adolph Rogers, county assessor of Henry county, Ind., assuming to act as such illegally and without authority of law, listed and assessed against this plaintiff for taxation the following amounts for the following years, to wit: 1885, $25,000; 1886, $30,000; 1887, $35,000; 1888, $40,000; 1889, $45,000; 1890, $50,000.That, pursuant to said pretended assessment, the auditor of said county has extended the same upon the tax duplicate and assessed, and charged against this plaintiff thereon, in respect to said property, the sum of $1,421.62, as taxes, and has placed the same in the hands of defendant, Saint, who is claiming the right to collect the same out of the assets of said estate by levy and sale, etc.And plaintiff further avers that said pretended listing and assessment by the county assessor is wholly without authority of law, for the reason that there is now no law in force in this state authorizing or empowering said assessor or any other person to assess or list property omitted from taxation, prior to the taking effect of the law of 1891, or to increase or add to the value of property assessed and returned for taxation prior to the taking effect of said law.The complaint is not a model pleading, but it is evident, we think, that the pleader, by the theory outlined by the alleged facts, seeks to assail the action of the county assessor in adding omitted property of the decedent for the years mentioned prior to the taking effect of the tax statute of 1891, upon the grounds that the appellee's decedent had during these years returned all property owned and held by him subject to taxation, and for the further reason that there was no warrant or authority for such action by the county assessor, under the act of 1891.This complaint was by the trial court adjudged to be sufficient to entitle appellee to injunctive relief, as therein demanded.The tax law of 1881 was in force during the years in which the decedent is claimed to have omitted the property in question.Section 6280, Rev. St. 1881, being section 11 of the act of 1881, required the taxpayer to list and return for taxation all personal property owned and held by him on the 1st day of April in each year.This duty the complaint does not allege that appellee's decedent discharged.It avers only that after the 1st day of April of the year of 1885, and the other years mentioned, he listed and returned his property for taxation to the proper assessor.It is not made to appear by this averment, directly or inferentially, that the decedent listed and returned each year in question all the property owned and held by him on the 1st day of April thereof.This was a material fact, and the rules of pleading required that it should be directly and positively averred.The absence of this essential fact rendered the complaint, in this respect at least, deficient.

Section 113 of the tax law of 1891, being section 8531, Rev. St. 1894, among other things provides: “It shall be the duty of the county assessor at any time during the year to list and assess * * * any omitted property that he may discover and which should be assessed.”It further provides as follows: “The county assessor is also given all the powers hereinafter given to county auditors and treasurers as to the assessments of omitted property, * * * and all provisions of sections 142and182 of this act as to notice or otherwise, so far as applicable, shall apply to such assessments of the county assessor, as the same were made by the county auditor and county treasurer.”Section 142, beingsection 8560, Rev. St. 1894, grants to the county auditor full power, upon notice to the taxpayer, to add property, omitted for any year or number of years, to the tax duplicate, with the proper valuation thereon, and to charge such property, and the owner thereof, with the taxes thereon.Section 8600, Rev. St. 1894, being section 182 of the tax act of 1891, gives certain enumerated powers to the county treasurer relative to omitted property.One of the leading objects of the tax statute of 1891 was to make such provisions, so far as could legitimately and practicably be done, as would in the end prevent the owners or holders of property liable to taxation from escaping the burden thereof, in whole or in part.Hence it invested the boards of review, county assessors, auditors, and treasurers with powers ample to carry the object into effect.The powers granted to the auditor by section 142, supra, relative to the adding of omitted property, are not limited alone to that officer, but are, in like manner, by section 8531, supra, extended to the county assessor, as are also those given to the county treasurer by section 182.It is conclusive, we think, that the county assessor has the...