Shepardson v. Gillette, Auditor

• Decision Date: 14 September 1892
• Docket Number: 15,880
• Citation: Shepardson v. Gillette, Auditor, 133 Ind. 125, 31 N. E. 788 (Ind. 1892)
• Parties: Shepardson v. Gillette, Auditor, et al
• Court: Indiana Supreme Court

31 N.E. 788

133 Ind. 125

Shepardson v. Gillette, Auditor, et al

No. 15,880

Supreme Court of Indiana

September 14, 1892

Petition for Rehearing Overruled December 20, 1892.

From the Lagrange Circuit Court.

Judgment affirmed.

O. L Ballou, for appellant.

J. S Drake and F. D. Merritt, for appellees.

OPINION

Miller, J.

This was an action brought by the appellant against the auditor of Lagrange county, the town of Lagrange, and the school town of Lagrange, to enjoin the placing of certain assessments of taxes for school purposes upon the tax duplicate of Lagrange county.

Demurrers, filed by each of the defendants, were sustained to the complaint, and these rulings present the only questions of law discussed in the briefs of counsel.

The complaint, in addition to the usual allegations showing that the plaintiff is a citizen of the town of Lagrange, whose lands are assessed, avers, in substance, these facts:

That the school town was indebted in a large sum of money, and it thereby became and was the duty of the board of school trustees to levy a special school revenue tax on the taxable property of the town of 50 cents on each $ 100 valuation, to pay the expenses of the school town, except tuition, and a local tax for tuition purposes of 25 cents on each $ 100 valuation; and, thereby, at the end of three years' time, the indebtedness of the school town could be paid, and the schools of the town maintained. That the board of school trustees disregarding their duty, the board of trustees of the town, on the 3d day of June, 1889, levied a tax of 25 cents on each $ 100 for the benefit of said tuition fund, which levy is the full extent authorized by law for the purpose of raising revenue for tuition. That said board of trustees, at the same time, unlawfully and wrongfully levied an additional tax of 6 cents on each $ 100 for the support of town schools, and 30 cents on each $ 100 for the benefit of the special school fund. That said defendant school town, by the action of its board of school trustees, by consent or otherwise, have adopted and ratified the action of the defendant town of Lagrange in making said unlawful and wrongful levy of taxes. That the several levies were certified by the clerk of the town of Lagrange to the auditor, who, although notified by the plaintiff that the levy of 6 cents on each $ 100 of said valuation was unlawfully and wrongfully levied, and is illegal and void, will, unless restrained by this court, place and enter said several levies made by said board of trustees, including the levy of 6 cents on the $ 100 for the support of the town schools, on the tax duplicate of the county, and the same will thereby become a cloud upon the lands and other property of the plaintiff.

Two distinct questions are presented by the ruling on the demurrers. One relates to the validity of the levies made by the board of trustees of the town of Lagrange, which is said to have been adopted and ratified by the board of school trustees, by consent or otherwise. The other calls in question the constitutionality of a statute.

It is conceded by counsel that the taxes sought to be enjoined, except the one which is claimed to be without constitutional authority, should have been levied by the board of trustees of the school town; that the levy was made by the board of trustees of the civil town who had no grant of power to make it. The question to be determined is, did the adoption and ratification by the school board of such unauthorized levy render it valid and effective?

Taxation is an act of government which can only perform its functions by means of officers clothed by it with power to take the necessary steps to levy and collect the public revenues.

Judge Cooley, in his work on taxation, p. 248, speaking of this delegation of power, says:

"No individual as such, or by virtue of his citizenship, can compel another to perform his duty to the State. He must come clothed with the authority of the State for that purpose, or, in contemplation of law, he comes as a trespasser, whose lawless intrusion may rightfully be resisted and repelled."

In Union Pacific R. W. v. Donnellan, 2 Wyo. 478, an assessment of certain taxes should have been, but was not made by the county assessor; afterward the assessment was made by the county clerk and county commissioners. It was held that these officers acted without authority of law, and that their acts were void, and the collection of the tax was enjoined. The same position was taken in Libby v. Burnham, 15 Mass. 144; Shewalter v. Brown, 35 Miss. 423.

In our opinion, the levy made by the town trustees, being wholly without their jurisdiction, was void, and the subsequent adoption and ratification by the trustees of the school town of this unauthorized levy did not impart to it vitality and effectiveness.

It does not appear that the levy made by the trustees of the civil town was made at the request or in behalf of the trustees of the school town. Indeed, we know of no principle of law that would authorize such a delegation of power, and we can not, therefore, see how there could be an adoption or ratification by one board of the acts of the other.

In Ellison v. Jackson Water Co., 12 Cal. 542, (551), Fields, J., says, speaking of the term "adopted and ratified": "These terms are properly applicable only to contracts made by a party acting or assuming to act for another. The latter may then adopt or ratify the act of the former, however unauthorized. To adoption and ratification there must be some relation, actual or assumed, of principal and agent."

In Mechem's Public Officers, section 529, it is said: "It is, therefore, the general rule that one may ratify the previous unauthorized doing by another in his behalf, of any act and of that only which he might then and could still lawfully do himself, and which he might then and could still lawfully delegate to such other to be done."

Had the board of school trustees possessed the power, originally, to delegate to the trustees of the civil town authority to make the levy, then there might be...