Western Union Tel. Co. v. State

• Decision Date: 02 December 1896
• Citation: 147 Ind. 274,45 N.E. 473
• Parties: WESTERN UNION TEL. CO. v. STATE.
• Court: Indiana Supreme Court

147 Ind. 274

45 N.E. 473

WESTERN UNION TEL. CO.

v.STATE.¹

Supreme Court of Indiana.

Dec. 2, 1896.

Appeal from circuit court, Marion county; E. A. Brown, Judge.

Action by the state of Indiana against the Western Union Telegraph Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Chambers, Pickens & Moores, for appellant. W. A. Ketcham, Atty. Gen., Merrill Moores, and Smith & Korbly, for the State.

PER CURIAM.

Almost every question raised on this appeal has already been considered and decided in favor of appellee in the cases of Telegraph Co. v. Taggart, 141 Ind. 281, 40 N. E. 1051 Id., 163 U. S. 1, 16 Sup. Ct. 1054; State v. Adams Exp. Co., 144 Ind. -, 42 N. E. 483; and W. U. Tel. Co. v. State (at last term) 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 W. U. 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 10 per cent. penalty for delinquency, and with court costs. The tender was refused by the appellee, for the reason, among 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 W. U. 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,...