Shideler v. Martin

• Decision Date: 30 June 1922
• Docket Number: 23,862
• Parties: Shideler, Auditor, v. Martin
• Court: Indiana Supreme Court

136 N.E. 1

192 Ind. 574

Shideler, Auditor, v. Martin

No. 23,862

Supreme Court of Indiana

June 30, 1922

Rehearing Denied December 12, 1922, Reported at: 192 Ind. 574 at 584.

From Wells Circuit Court; Frank W. Gordon, Judge.

Proceedings by Joseph E. Shideler, auditor of Huntington county, to fix the amount of taxes on property of Peter Martin, omitted from the tax duplicates. From the judgment rendered, the auditor appeals.

Appeal dismissed.

Miller & Dowling, Claude Cline and Simmons & Dailey, for appellant.

Eben Lesh, C. W. Watkins and W. H. Eichhorn, for appellee.

Emsley W. Johnson and Joseph W. Hutchinson, Amici Curiae.

OPINION

Ewbank, J.

The auditor of Huntington county, after notice to appellee placed on the tax duplicate, as omitted property, certain shares of stock in certain foreign corporations, as having been owned by appellee in each of a series of years, fixed a value on such omitted property for the different years of from $ 43,070 to $ 63,815, and assessed against appellee taxes thereon for those years in the total amount of $ 26,155.12.

Appellee duly filed his bond, under § 10310a Burns 1914, Acts 1911 p. 479; see § 10139w9 Burns' Supp. 1921, Acts 1919 p. 198, § 256, for an appeal to the circuit court where evidence was heard, a special finding of facts was made, conclusions of law were stated thereon, and judgment was rendered in conformity with the finding and conclusions, to the effect that the total amount of taxes on omitted property for which appellee was liable amounted to $ 4,556.16.

Appellant moved to dismiss the proceeding in the circuit court, for the alleged reason that the statute granting an appeal from the auditor to the circuit court is unconstitutional. He excepted to the first conclusion of law, and moved for a new trial, in each instance presenting the same question. Each motion was overruled, and appellant excepted. The alleged error in the first conclusion of law, and in overruling the motions to dismiss and for a new trial are duly presented for consideration by proper assignments of errors. The appellee asks that this appeal be dismissed on the ground that the statute which grants an appeal to the circuit court does not grant a further appeal from its decision to the Supreme Court.

If the statute granting an appeal to the circuit court is unconstitutional, and that court had no jurisdiction, all of its acts and its judgment necessarily would be void. But an appeal from the circuit court to this court may be prosecuted for the purpose of questioning the validity of the judgment appealed from, even though such judgment is void for lack of jurisdiction of the trial court to render it. Cushman v. Hussey (1918), 187 Ind. 228, 235, 118 N.E. 816; Baltimore, etc., R. Co. v. Board (1900), 156 Ind. 260, 269, 58 N.E. 837, 59 N.E. 856; Weaver v. Ferguson (1917), 68 Ind.App. 169, 178, 117 N.E. 659; Ewbank's Manual §§ 267, 289; 3 C. J. 467; 33 L. R. A. (N. S.) 733, note.

The statute in question reads as follows: "That from any finding, conclusion or decision of any county assessor, any county auditor, any county treasurer or any other officer or officers or board whose duty it may be to investigate, decide, assess and place on the tax duplicate of any county of this state, any property subject to taxation and omitted to be returned, listed and assessed for taxation, the owner of such property or other person against whom such omitted property has been assessed shall have the right to appeal from such finding, conclusion or decision to the circuit court of the county wherein said omitted property is so listed or added for taxation: Provided, That such appeal shall be taken within ten days after the entering of such omitted property on the tax duplicate of such county, by the taxpayer or person against whom such taxes are assessed, filing his written undertaking with the auditor of such county with security to be approved by such auditor, conditioned to pay, without delay, all taxes, interest and penalties as may on final hearing be found due, together with costs assessed against him: Provided, also, The officer so entering such omitted property for taxation shall, at the time of entering the same on the tax duplicate, deposit in the United States mail properly addressed to the taxpayer against whom the assessment is made, notice of said assessment." § 10310a Burns 1914, supra.

The first objection to the validity of this statute urged by appellant is that it is void for uncertainty. But the established practice in preparing and certifying transcripts of the proceedings of inferior tribunals when appeals are taken therefrom to the circuit court, and of that court in hearing and deciding such appeals, and the power of the court to adopt rules for its own guidance where the statute is silent must be taken into consideration. And the statute should be understood to confer authority to consider and pass upon judicial questions, of which the court has jurisdiction, if there be any such questions involved, rather than an attempt to confer authority to pass upon questions which the Constitution forbids it to decide. If a statute is susceptible of a reasonable construction which makes it intelligible and does not conflict with the Constitution, it will be given that construction and upheld, rather than a construction which would make it invalid. State v. Barrett, Aud. (1909), 172 Ind. 169, 174, 87 N.E. 7; School Town v. Heiney (1912), 178 Ind. 1, 6, 98 N.E. 628, 43 L. R. A. (N. S.) 1023, Ann. Cas. 1915B 1136; Crittenberger v. State, etc., Trust Co. (1920), 189 Ind. 411, 425, 127 N.E. 552. Within the rules above laid down, we think that this statute may be fairly interpreted to require that upon the presentation of a sufficient bond within ten days the county auditor shall prepare and certify a transcript of the proceedings before him, and file it with the clerk of the circuit court, and that without further pleadings, or upon the filing of such additional pleadings as that court, in its discretion, may direct or permit, the court shall hear and determine such judicial questions as arise upon the facts of the case. The legislature has power to provide for bringing a matter before the court without formal pleadings or the formation of issues, where relief is sought as against the public or officers representing the public.

Where property is listed and valued by an assessor engaged in listing all the property of his township for taxation for the current year, the circumstances are not the same as where a county auditor undertakes to fix the value of certain omitted property a year, five years, or a dozen years after the close of the year for which the tax is to be paid. Such a difference of circumstances justified different provisions for taking an appeal from the assessment, as well as different provisions for making the assessment. And we do not think the fact that appeals from the action of the township assessor lie to the county board of review, and from it to the state board of tax commissioners, while appeals from an assessment of omitted property lie to the circuit court, makes the statute a special law for the assessment of taxes within the meaning of Art. 4, § 22, of the Constitution.

Classification of subjects of legislation that is natural, fair and reasonable is permitted by the Constitution. Strange v. Board (1910), 173 Ind. 640, 645, 91 N.E. 242; Hirth-Krause Co. v. Cohen (1912), 177 Ind. 1, 10, 97 N.E. 1, Ann. Cas. 1914C 708; Temperly v. City of Indianapolis (1920), 189 Ind. 292, 297, 127 N.E. 149, 151.

Whether the property added to appellant's tax list was taxable, whether the valuation appealed from expressed the honest judgment of the auditor, as controlled by that provision of the Constitution (Art. 10, § 1, Constitution), which requires a uniform and equal rate of taxation, or was arbitrarily adopted to serve the interests of himself or of a "tax ferret" acting as his adviser, and whether the statutes under which the assessing officer assumed to act were constitutional, and many other similar questions which might arise in such a proceeding, were judicial questions that might have been brought before the court for determination by proper proceedings, even if there had been no statute authorizing an appeal. Taylor v. Louisville, etc., R. Co. (1898), 88 F. 350, 31 C. C. A. 537; Greene v. Louisville, etc., R. Co. (1916), 244 U.S. 499, 37 S.Ct. 673, 61 L.Ed. 1280, Ann. Cas. 1917E 88; Oregon, etc., R. Co. v. Jackson (1901), 38 Ore. 589, 64 P. 307, 65 P. 369.

Nothing in the Constitution of Indiana forbids the consideration and decision of judicial questions of this kind when removed into the court under authority of law, by an "appeal," instead of being presented in an original action, begun by complaint and summons. Board v. Chicago, etc R. Co. (1867), 44 Ill. 229; George v. People (1897), 167 Ill. 447, 459, 47 N.E. 741. A great many decisions of the courts of many states recognize the validity of appeals to the courts from decisions of taxing officers when authorized by statute. Ex parte State (1919), 203 Ala. 444, 83 So. 334; Cochran v. State (1921), (Ala.) 89 So. 278; Ex parte Fort Smith, etc., B. Co. (1896), 62 Ark. 461, 36 S.W. 1060; Mohave County v. Stephens (1915), 17 Ariz. 165, 149 P. 670; Singer Mfg. Co. v. Denver (1909), 46 Colo. 50, 103 P. 294; United States Envelope Co. v. Vernon (1899), 72 Conn. 329, 44 A. 478; German A. S. Bank v. Council City of Burlington (1902), 118 Iowa 84, 91 N.W. 829; Marion County v. Wilson (1899), 105 Ky. 302, 49 S.W. 8, 799; Carr v. Louisiana Central Lumber Co. (1915), 136 La. 1025, 68 So. 113; National Bank v. City of New Bedford (1899), 175 Mass. 257, 56 N.E. 288; Penobscot C. F. Co. v. Inhabitants Town of Bradley (1904),...