The City of Delphi v. Bowen

• Decision Date: 08 March 1894
• Docket Number: 16,576
• Citation: 36 N.E. 761,138 Ind. 235
• Parties: The City of Delphi et al. v. Bowen, Administrator
• Court: Indiana Supreme Court

36 N.E. 761

138 Ind. 235

The City of Delphi et al. v. Bowen, Administrator

No. 16,576

Supreme Court of Indiana

March 8, 1894

Petition for a Rehearing Overruled June 22, 1894.

From the Carroll Circuit Court.

The judgment is reversed, with directions to sustain the demurrers to both paragraphs of the complaint, and for further proceedings not inconsistent with this opinion.

M. A Ryan, J. H. Gould and G. R. Eldridge, for appellants.

R. C Pollard, C. R. Pollard and M. Winfield, for appellee.

OPINION

Howard, C. J.

This was a suit instituted by the appellee against the appellants in the Carroll Circuit Court, to cancel and declare void certain taxes as levied upon omitted personal property and placed upon the tax duplicate by the clerk of the city of Delphi. On the overruling of demurrers to the complaint, the appellants refused to plead further, and judgment was rendered declaring the added taxes illegal and void, and directing their cancellation.

The property claimed by the city to have been omitted from taxation consisted of moneys, money loaned, and credits owned by appellee's decedent for the years from 1881 to 1890, inclusive.

Section 147 of the tax law of 1881, being section 6416, R. S. 1881, and re-enacted as section 142 of the tax law of 1891, authorized the county auditor, on discovering that any personal property had been omitted, in whole or in part, in the assessment of any year or number of years from the assessment book, or from the tax duplicate, to proceed to assess the same, first giving notice to the owner, occupant or person in possession thereof.

By section 259 of the tax law of 1881, being section 3160, R. S. 1881, and re-enacted in section 254 of the tax law of 1891, Acts 1891, p. 290, it is provided that "cities shall be governed by the provisions of this law, in regard to the matters embraced therein, so far as the same are applicable, and the duties required by the terms of this act to be done by the county officers, shall be performed by the corresponding officers of each city in regard to the assessment and collection of taxes, and all matters pertaining thereto."

It is not questioned that the city clerk is the city officer corresponding to the county auditor as county officer. The city clerk is, therefore, the proper officer to assess omitted property, and to give the notice to the owner required to be given in such case by the county auditor. The complaint shows that in this case these duties were performed by the city clerk as required by the statute, and that the appellee appeared before the clerk and...