Simonson v. The Town of West Harrison

• Decision Date: 29 November 1892
• Docket Number: 703
• Citation: 32 N.E. 585,5 Ind.App. 459
• Parties: SIMONSON v. THE TOWN OF WEST HARRISON
• Court: Indiana Appellate Court

32 N.E. 585

5 Ind.App. 459

SIMONSON v. THE TOWN OF WEST HARRISON

No. 703

Court of Appeals of Indiana

November 29, 1892

From the Dearborn Circuit Court.

Judgment affirmed.

G. M Roberts and C. W. Stapp, for appellant.

W. H Bainbridge, for appellee.

OPINION

BLACK, J.

The appellee's demurrer to the appellant's complaint was sustained, and the question as to the sufficiency of the facts pleaded is before us for decision.

In the complaint, which was filed on the 15th of December, 1891, it was shown, in substance, that the appellee was, and for more than ten years had been, an incorporated town, located wholly within the civil township of Harrison, in Dearborn county Indiana; that the appellant owned, and for ten years had owned, a tract of one hundred and twenty-nine acres of agricultural land, lying in one contiguous body, wholly unimproved, which had not been used for other than agricultural purposes, no part of which had been platted as city or town property, and all of which was, and during said period had been, situated within the corporate limits of said town and also in said civil township; that in the years 1884, 1885, 1886, 1887, 1888, 1889 and 1890 the appellee, without the knowledge or consent of the appellant, for each of said years wrongfully and illegally taxed and levied a tax upon said land, which for all general town purposes was of a higher aggregate percentage upon the appraised value for taxation thereof than the aggregate percentage of the tax levy in said Harrison civil township for general township purpose for the same years respectively; that said land during said time and for each of said years was valued by said town, township and county, for purposes of taxation, at seven thousand dollars. The excess of the rate of percentage at which the land was taxed by the town for general town purposes over the aggregate rate of percentage of the tax levied in the civil township for general township purposes, and the amount of such excess of taxes for each year, were stated in the complaint in detail, the whole amounting to $ 267.40, which was alleged to be the total amount of tax "so unlawfully levied by defendant for said years as aforesaid, upon said land, in excess of said civil township rate."

It was further alleged that the excess of each of said years composing said sum, together with the other taxes levied by said town, township and county, "by procurement of the defendant, under the law authorizing the collection of taxes levied by cities and towns to be placed on the county duplicate and collection to be made by the county treasurer, was wrongfully and unlawfully caused to be placed upon the tax duplicate of" said county, for each of said years, with the State, county and other taxes levied and assessed against the appellant, as one sum in gross, without separate column, heading, designation or reference made thereto in any manner; that said duplicate for each of said years was placed, on or before the 31st of December, in the hands of the treasurer of said county, who immediately upon the receipt of the duplicate proceeded to collect for and on behalf of the appellee "the said wrongful, illegal, excessive tax" so placed on the duplicate in each of said years, without separating from the State and county tax the tax so levied by the appellee for general town purposes; that the appellant, "under the mistake of facts hereinafter averred, paid the taxes placed on such duplicate, including such illegal excess, each year, before the same became delinquent, unto said county treasurer, and for all of said years paid to such treasurer said sum of $ 267.40 of said illegal excess of tax, and said sum was by such treasurer, long before the commencement of this action, paid to the defendant town, and such sum is yet retained by it;" that when he so paid said sum of illegal excess for each of said years, he did so under a mistake as to the facts, in this, that he did not know when such payments or any of them were made, what valuation for purposes of taxation had been placed on said land, or that the appellee, for any of such years, had levied a greater rate of tax for general town purposes upon said land than the aggregate percentage levied in such civil township for general township purposes for such year; nor did he know what rate of tax had been levied by the appellee for any such year for its general town purposes on said land; nor did he know, at any time, when paying such taxes, nor did said tax duplicate contain any information by which he could be informed, what portion or sum of the taxes charged on such duplicate were the taxes levied by the appellee for general town purposes; nor did he know, nor did said duplicate contain any information by which he could be informed, that any portion of such tax on said duplicate charged was made up of any such illegal tax; and relying upon the correctness of the computations made by the auditor and the treasurer of said county, and upon the correctness of the charge against him on such duplicate, and believing that the appellee had not assessed against said property, for its general town purposes, a greater rate of tax than said rate of taxation in said civil township for township purposes, and being mistaken as to the fact that such greater rate had been levied, he paid said illegal excess of tax for each of said years as aforesaid.

It is further alleged that the appellant did not know or ascertain "said facts above mentioned, or any of them," until the whole of said sum of $ 267.40 was paid by him and received by the appellee; that upon ascertaining such facts, and before the commencement of this action, he presented to the appellee a claim for the refunding of said wrongful and illegal tax, together with a statement of the facts showing such wrongful assessment and collection of such tax, and demanded of the appellee the refunding of said sum so paid by him, and the appellee "refused and still refuses" to pay or refund said sum to the appellant. Wherefore, etc.

A statute enacted in 1881 (section 3261, R. S. 1881) provided as as follows: "Lands lying within the limits of any city or incorporated town in this State, that are not platted as city or town property, and are not used for other than agricultural purposes or are wholly unimproved, together with all personal property used for the purpose of farming on such lands, shall not be taxed in such city or town, for all purposes, at a higher aggregate percentage upon the appraised value thereof than the aggregate percentage of the tax levy in the civil township wherein such property is situated: provided, however, That the provisions of this act shall not apply to parcels of land containing less than five acres."

This statute was repealed...