Warren v. City of Evansville

• Decision Date: 30 March 1886
• Citation: 106 Ind. 104,5 N.E. 876
• Parties: Warren v. City of Evansville and another.
• Court: Indiana Supreme Court

106 Ind. 104

5 N.E. 876

Warren

v.City of Evansville and another.

Supreme Court of Indiana.

Filed March 30, 1886.

Appeal from Vanderburgh superior court.

Denby & Kumler, for appellant.

James B. Rucker, for appellees.

Howk, J.

In this case the appellant, Warren, in his complaint of two paragraphs, prayed the superior court of Vanderburgh county to perpetually enjoin the appellees, the City of Evansville and Nicholas M. Goodlett, treasurer of such city, from enforcing, or attempting to enforce, the collection of certain municipal taxes which he claimed had been illegally assessed by such city against his property. Appellees separately demurred to each paragraph of appellant's complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. These demurrers were sustained by the court, and appellant excepted, and, failing to amend or plead further, judgment was rendered by the court that he take nothing by his suit, and that appellees recover of him their costs. Appellant has here assigned as errors the sustaining of appellees' separate demurrers to each paragraph of his complaint.

In the first paragraph of his complaint, appellant alleged that he was a resident and tax-payer of the city of Evansville, and in the year 1883, and since, owned real and personal property, within the corporate limits of such city, appraised by the city assessor for the year 1883 at the value of $9,735; that under and by virtue of section 35 of an act entitled “An act granting to the citizens of the town of Evansville, in the county of Vanderburgh, a city charter,” approved January 27, 1847, the city of Evansville and its common council were expressly prohibited from levying an ad valorem tax exceeding three-fourths of 1 per centum upon the value of the property, capital, and money taxed in such city for any one year, yet that the city of Evansville and its common council, for the year 1883, wrongfully, illegally, and without any power or authority so to do, levied and assessed against and upon appellant's property, as aforesaid, an ad valorem tax of 1 1/4 per centum for general city purposes; that, having thus levied such tax, and imposed a burden upon appellant's property beyond the power and authority of such city and its common council, appellee Goodlett, treasurer of such city, was threatening and was about to seize and levy upon appellant's property, and sell the same to pay such illegal tax, levy, and assessment; that on the eleventh day of April, 1884, such taxes against appellant's property having been returned delinquent, he paid to appellee the full amount of the legal taxes assessed against his property on the valuation aforesaid, to-wit, three-fourths of 1 per centum on said valuation, together with interest, penalties, cost of advertising, and poll; and that, when he commenced this suit, appellant did not owe the city of Evansville anything on account of such pretended assessment, levy, and tax. In the second paragraph of his complaint substantially the same facts are stated by the appellant as in the first paragraph, with this addition: That the city of Evansville and its common council, in disregard of the limitations laid upon them by the original section 35 of the charter of such city, levied and assessed upon appellant's property, valued as aforesaid, an ad valorem tax of 1 1/4 per cent. for general city purposes, pretending to act under and by virtue of an act of the general assembly of this state pretending to amend such section 35 of the charter of such city, “which amendatory act plaintiff avers is unconstitutional and void.”

It is manifest that appellant's case, as stated in each of the paragraphs of his complaint, is founded wholly upon the averment last quoted, namely, that the amendatory act referred to is “unconstitutional and void.” In the first paragraph of his complaint, appellant quietly ignored the amendatory act in question as a thing so unconstitutional and void that it need not be even noticed. In the second paragraph he denominates such act as a pretended amendatory act, under and by virtue of which the city of Evansville and its common council pretended to act in levying...