State ex rel. City of Hammond v. Foland, 23718.

• Decision Date: 15 November 1921
• Docket Number: No. 23718.,23718.
• Citation: 191 Ind. 342,132 N.E. 674
• Parties: STATE ex rel. CITY OF HAMMOND v. FOLAND, County Auditor.
• Court: Indiana Supreme Court

191 Ind. 342

132 N.E. 674

STATE ex rel. CITY OF HAMMOND

v.FOLAND, County Auditor.

No. 23718.

Supreme Court of Indiana.

Nov. 15, 1921.

Appeal from Circuit Court, Lake County; C. M. Greenlee, Special Judge.

Action for mandate by the State, on the relation of the City of Hammond, against George M. Foland, as Auditor of Lake County. From judgment sustaining demurrer to complaint, relator appeals. Affirmed.Wm. J. Whinery, of Hammond, for appellant.

Crumpacker & Crumpacker and Edwin H. Friedrich, all of Hammond, for appellee.

WILLOUGHBY, J.

This was an action for mandate brought against the appellee, as auditor of Lake county, Ind., to compel him to prepare and deliver to the relator, the city of Hammond, a tax duplicate for the city of Hammond, and to place upon said tax duplicate all property within the corporate boundaries of said territory as set out in relator's complaint, whether such territory be platted or unplatted territory, and to turn over and deliver to the treasurer of said city of Hammond said tax duplicate for said city of Hammond.

[1] The complaint was in two paragraphs, and in each paragraph it is alleged that the relator, the city of Hammond, is a city of the third class under the laws of the state of Indiana, and is in Lake county, Ind., but not the county seat of said Lake county, and that the relator, long before the beginning of this suit, by its common council, duly authorized its city treasurer to receive and collect all taxes shown upon the tax duplicate of such city for city purposes, the same as county treasurers collect such taxes for other cities. A demurrer was sustained to each paragraph. Appellant assigns this as error.

The appellant contends that under the statutes (sections 8817, 8643, 8824, 8825, 8826, and 8827) it was the duty of the auditor of Lake county to make out and deliver and turn over to the treasurer of the city of Hammond the tax duplicate for said city of Hammond.

Section 8817, Burns' 1914, provides that the city treasurer of each city shall be the head of the department of assessment and collection of taxes for such city, provided that in any city of the first, second, or third class which is the county seat of the county in which such city is located the county treasurer of such county shall be ex officio treasurer of such city, and shall perform all the duties of this act required to be performed by the city treasurer.

Section 8643, Burns' 1914, divides the cities of this state into five classes, first, second, third, fourth, and fifth.

Section 8827, Burns' 1914, makes it the duty of the county treasurer to collect the taxes as shown on such duplicate, and also provides that in all cities not county seats which have city treasurers the common council of such city may authorize such city treasurer to receive and collect all taxes shown on the duplicate of such city for city purposes the same as county treasurers collect such taxes for other cities.

Section 8820, Burns' 1914, provides how cities of the fourth class which are not county seats may collect taxes, and it provides that the city officers of said city shall have access to the assessors books and tax duplicate in the county auditor' office for the purpose of transcribing therefrom a list of the property as the same has been equalized by the board of review; that the general laws for taxation governing the collection of taxes, penalty for delinquency, sale of property returned as delinquent, penalty for redemption, so far as the same is applicable, shall govern property in said city that is returned as delinquent.

The appellant asserts that under section 8827, as amended by Acts of 1919, as a resultant condition arising from the office of auditor of the county in which the city of Hammond is located, the duty devolves upon the county auditor to make out and deliver to the city treasurer of the city of Hammond the tax duplicate for such city, the same as he would be required to make out and deliver such duplicate to the county treasurer if the city of Hammond were a county seat or a city in which the county treasurer collected the taxes on behalf of such city. As sustaining this proposition appellant also cites sections 8824, 8825, 8826, and 8827, Burns' 1914, and Acts of 1919, c. 202, pp. 782-784 inclusive.

Section 8824, Burns' 1914, provides that the assessment and appraisement for taxation for state and county purposes of all real and personal property and polls subject to taxation within every city of this state as made pursuant to the provisions of the act of the General Assembly of the state of Indiana now or hereafter in force for the assessment of state and county taxes, as the same shall have been equalized by the county board of review and the state board of tax commissioners, including all additions made thereto by such boards or either of them, and all assessments and appraisements of omitted property made by the auditor, treasurer, or assessor of the county in which such city is situated, shall be the basis upon which the common council of such city shall levy and assess the taxes for city purposes which they respectively shall deem it necessary to levy, within the limitation hereinafter prescribed, and the taxes so levied shall become and continue liens upon the property upon which they are levied at the time in the manner and to the extent that taxes levied for state, county and other purposes, become and continue liens upon such property by virtue of the provisions of the laws of taxation of this state.

Section 8825, Burns' 1914, provides that it shall be the duty of the auditor of the county in which any city is situated, in each year, to make out and deliver to the city clerk, in cities of the fifth class, and to the department of finance in cities of every other class, a certificate under the seal of the board of commissioners of such county showing the aggregate assessment and valuation for taxation for the year in which such certificate is made of all taxables, real and personal, including railroad property in such city, and the number of taxable polls therein, as the same shall have been returned by the assessor of the township in which such city, or any part thereof, is situated, and as equalized by the county board of review and the state board of tax commissioners, and added to by the assessment of omitted property, which certificate shall be so made and delivered by such auditor immediately after the assessment and valuation of such property and polls has been completed and returned to his office. This section then goes on to prescribe the duties of the department of finance or the city clerk in regard to this certificate.

Section 8826, Burns' 1914, provides that the levies of taxes made as provided in the last section shall be certified by the department of finance or city clerk as aforesaid, under seal, without delay, to the county auditor, and such auditor shall thereupon proceed to estimate, as he is now required to do in reference to state, county, township, road, and other taxes, the amount of tax chargeable according to the rate prescribed by such levies to each...