The State ex rel. Goodman v. Halter

• Decision Date: 17 September 1897
• Docket Number: 18,213
• Citation: 47 N.E. 665,149 Ind. 292
• Parties: The State, ex rel. Goodman, Prosecuting Attorney, v. Halter
• Court: Indiana Supreme Court

47 N.E. 665

149 Ind. 292

The State, ex rel. Goodman, Prosecuting Attorney, v. Halter

No. 18,213

Supreme Court of Indiana

September 17, 1897

Rehearing Denied Jan. 13, 1898, Reported at: 149 Ind. 292 at 303.

From the Knox Circuit Court.

Reversed.

William A. Ketcham, Attorney-General, John T. Goodman, W. A. Cullop and C. B. Kessinger, for appellant.

Smith & Korbly and Cauthorn, Dailey & Cauthorn, for appellee.

OPINION

Monks, J.

This action was brought by appellant to recover from appellee the penalties fixed by statute for giving false lists of his taxable property to the assessor for 1895, and former years. An answer in four paragraphs was filed. Appellant's demurrer to the first paragraph of answer was overruled, and appellee having withdrawn the second, third, and fourth paragraphs of answer, and appellant refusing to reply to said paragraph, judgment was rendered in favor of appellee.

The only error assigned and not waived calls in question the action of the court in overruling appellant's demurrer to the first paragraph of answer.

The first paragraph of answer set up the two years' statute of limitation as a bar to so much of the complaint as sought to recover penalties for appellee giving false lists of his taxable property for each of the years 1891 1892, and 1893. The amended complaint sought to recover penalties for each of the years, 1881 to 1895, inclusive. Section 294, Burns' R. S. 1894 (293, R. S. 1881), upon which the first paragraph of answer is based, provides that actions for forfeiture or penalty given by statute shall be commenced within two years after the cause of action has accrued, and not afterwards. It is expressly provided however, by section 305, Burns' R. S. 1894 (304, R. S. 1881), that "Limitations of actions shall not bar the State of Indiana, except as to sureties." Under the revised statutes of 1852, the statute of limitations applied to and bound the State the same as individuals. Section 224, R. S. 1852, p. 78, section 224, 2 Gavin & Hord, p. 164, 2 Davis R. S. 1876, section 224, p. 129; Cartright v. Briggs, 41 Ind. 184. In 1881 the General Assembly passed an act concerning proceedings in civil cases, in which it was provided that "Limitations of actions shall not bar the state of Indiana, except as to sureties." Section 305, Burns' R. S. 1894 (304, R. S. 1881). This section restored the rule that prevailed at common law, except as to sureties, for at common law the State was not barred even as against sureties. Unless the statute expressly provides otherwise, it can not be set up as a bar to any claim or right of the State. Woods, Limitations, section 52; 13 Am. and Eng. Ency. of Law, 711, 713; United States v. Nashville, etc., R. W. Co., 118 U.S. 120, 125, 30 L.Ed. 81, 6 S.Ct. 1006, and cases cited; United States v. Beebe, 127 U.S. 338, 346, 32 L.Ed. 121, 8 S.Ct. 1083; Miller v. State, 38 Ala. 600; Moody v. Fleming, 4 Ga. 115; Josselyn v. Stone, 28 Miss. 753, 762; Parmilee v. McNutt, 1 S. & M. (Miss.) 179, 182; Hill v. Josselyn, 13 S. & M. (Miss.) 597; Commonwealth v. Baldwin, 1 Watts 54, 56.

In Pennsylvania Co. v. State, 142 Ind. 428, 41 N.E. 937, this court held that an action brought under the act of March 9, 1889, sections 5186, 5187, Burns' R. S. 1894, commonly called the "Black-board Law," which provides that for each violation of the "act * * * * the company shall forfeit and pay the sum of twenty-five dollars, to be recovered in a civil action to be prosecuted by the prosecuting attorney * * * in the name of the State of Indiana, one half of which shall go to said prosecuting attorney and the remainder to be paid over to the county in which such proceedings are had, and shall be part of the common school fund," was not barred in two years for the reason that, under section 305 (304), supra, the statute of limitations did not apply where the cause of action was in favor of the State.

Appellee admits the rule as stated, but insists that the same only applies when the action is by the State in its own interest, and has no application where the State is only a nominal party. It is true the rule does not apply to cases where the action is not by the State or in the interest of the public, but the State is a nominal party, and has no real interest in the litigation, and its name is used to enforce a right solely for the benefit of private parties, as an action in the name of the State on relation of the party in interest, on the bond of a guardian, administrator, or executor, or when a person seeks to obtain a private right by mandamus in the name of the State. United States v. Beebe, supra; Miller v. State, supra; Moody v. Fleming, supra; Woods on Limitations, section 52; 13 Am. and Eng. Ency. of Law, 711-713.

In United States v. Beebe, supra, suit was brought in the name of the United States, by the Attorney-General, to set aside certain patents, and it was held that the statute of limitations was a bar. The court said, [149 Ind. 296] at p. 344: " The principle that the United States are not bound by any statute of limitations, nor barred by any laches of their officers, however gross, in a suit brought by them as a sovereign government to enforce a public right, or to assert a public interest, is established past all controversy or doubt. United States v. Nashville, etc., R. W. Co., 118 U.S. 120, 30 L.Ed. 81, 6 S.Ct. 1006 and 125, and cases cited. But this case stands upon a different footing, and presents a different question. The question is, are these defenses available to the defendant in a case where the government, although a nominal complainant party, has no real interest in the litigation, but has allowed its name to be used therein for the sole benefit of a private person? It has been not unusual for this court, for the purpose of justice, to determine the real parties to a suit by reference, not merely to the names in which it is brought, but to the facts of the case as they appear on the record. * * * Applying these principles to the case, an inspection of the record shows that the government, though in name the complainant, is not the real contesting party to the title or property in the land in controversy. It has no interest in the suit and has nothing to gain from the relief prayed for, and nothing to lose if the relief is denied." And on page 347: "We are of the opinion that where the government is a mere formal complainant in a suit, not for the purpose of asserting any public right or protecting any public interest, title, or property, but merely to form a conduit through which one private person can conduct litigation against another private person, a court of equity will not be restrained from administering the equities existing between the real parties by any exemption of the government designed for the protection of the rights of the United States alone. The mere use of its name in a suit for the benefit of a private suitor cannot extend its immunity as a sovereign government to said private suitor, whereby he can avoid and escape the scrutiny of a court of equity into the matters pleaded against him by the other party; nor stop the court from examining into and deciding the case according to the principles governing courts of equity in like cases between private litigants."

The distinction that runs through all the cases is the difference between an action in the name of the State to protect the interest of the public, and an action to enforce a private right for the sole benefit of a private person. Upon reason and authority, therefore, the rule is that, when the statute of limitations is pleaded in an action where the State is plaintiff, the court must determine, from an examination of the entire record, whether the action seeks to enforce a public right, in the interest of the public, or a private right, for the benefit of a private person. If to enforce a public right, in the public interest, the statute of limitations is not applicable; but if to enforce a private right, in a private interest, the statute is applicable, although the State is named as plaintiff.

It becomes necessary, therefore, to determine whether this action is brought in the interest of the public, to enforce a penalty for the benefit of the public, or whether it is merely a private action, to enforce liability in a private interest.

The power of taxation is essential to the very existence of government, and it is therefore inherent in the State. It is a legislative power, and is limited only by the provisions of the constitution. The constitution in this State provides that "The General Assembly shall provide, by law, for a uniform and equal rate of assessment and taxation; and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal, excepting such only, for municipal, educational, literary, scientific, religious, or charitable purposes, as may be specially exempted by law." Const., art. 10, section 1.

The legislature has enacted a tax law, under which it is the duty of every person liable to be assessed to deliver to the assessor, when called upon for that purpose, a full, true and correct description of all of the personal property owned, held, possessed, or controlled by him on the first day of April of that year, and that he fix what he deems the true cash value thereof to each item of property. Section 8458, Burns' R. S. 1894. It is further provided that, if any person shall give a false or fraudulent list, schedule, or statement required by the statute, or shall willfully fail or refuse to deliver to the assessor, when called upon for that purpose, a list of the taxable property which he is required by law to list, said person or corporation shall be liable to a penalty of not less than $...