The Western Union Telegraph Co. v. The State
| Decision Date | 02 December 1896 |
| Docket Number | 18,058 |
| Citation | 45 N.E. 473,147 Ind. 274 |
| Parties | The Western Union Telegraph Company v. The State |
| Court | Indiana Supreme Court |
Rehearing Denied March 12, 1897.
From the Marion Circuit Court.
Affirmed.
Smiley N. Chambers, Samuel O. Pickens and Charles W. Moores, for appellant.
W. A Ketcham, Attorney-General, Smith & Korbly and Merrill Moores, for State.
Almost every question raised on this appeal has already been considered and decided in favor of appellee, in the cases of Western Union Tel. Co. v. Taggart, Aud., 141 Ind. 281, 163 U.S. 1, 16 S.Ct. 1054, 41 L.Ed. 49; State v. Adams Exp. Co., 144 Ind. 549, 42 N.E. 483; Western Union Tel. Co. v. State, 146 Ind. 54, 44 N.E. 793. A question raised in appellant's brief, if it were properly presented by the record, is found in the objection made to the action of the court in overruling appellant's motion for a modification of the judgment. After the taxes due by appellant for the year 1895 had become delinquent, and this action was brought for their collection, under provisions of section 11 of the act of March 6, 1893 (Acts 1893, p. 374), in the manner detailed in Western Union Tel. Co. v. State supra, and after a demurrer to appellee's complaint had been overruled and a demurrer to appellant's answer sustained, but before the finding of the court or the entry of judgment, the appellant came into court and tendered the amount of taxes due, together with ten per cent. penalty for delinquency, and with court costs. The tender was refused by the appellee, for the reason, amongst others, that the offer did not include the 50 per cent. penalty provided for in the statute in case of suit brought by the State for collection of such delinquent taxes.
We think the tender made was insufficient. For reasons given in Western Union Tel. Co. v. State, supra, the 50 per cent. penalty accrues on the bringing of the suit. The right of the State to this penalty becomes inchoate at the moment of the delinquency, but does not actually accrue until the suit is brought. So the mechanic or material man has a right to a lien on a building as soon as labor is done or material furnished, but the lien is not actually acquired until notice is given. Had the State not brought suit the right to the penalty would not have accrued.
The right of the State to the penalty was the same as its right to the taxes themselves, both depending upon the same statute. The right to the taxes accrued by reason of the assessment, and that to the penalty by reason of the delinquency in payment and the suit brought for collection. The office of the court was but to declare the law in its judgment, and this was done by including with the taxes the penalty that had already accrued. A payment of the taxes, with penalty in case of delinquency, if made before suit brought, would, of course, have prevented suit, and hence avoided the 50 per cent. or suit penalty. But the State could not be put to the expense of a suit, and then, by a tender of payment, be deprived of the means provided in the statute as...
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