White River School Tp., Randolph County v. Anchor Hocking Glass Corp., 19332
| Citation | 131 Ind.App. 242,168 N.E.2d 349 |
| Decision Date | 06 July 1960 |
| Docket Number | No. 19332,No. 2,19332,2 |
| Parties | WHITE RIVER SCHOOL TOWNSHIP, RANDOLPH COUNTY, Indiana, White River Township, Randolph County, Indiana, Appellants, v. ANCHOR HOCKING GLASS CORPORATION, Board of County Commissioners of Randolph County, Indiana, Louie Grow, Appellees |
| Court | Court of Appeals of Indiana |
Zane E. Stohler, Winchester, Alexander Lysohir, Portland, John T. Cook, Winchester, for appellants.
Russell E. Wise, Union City, John A Resler, Portland, for appellees.
Appellee, Anchor Hocking Glass Corporation (hereinafter referred to as 'Anchor'), filed its claim with the appellant Board of County Commissioners for a refund of certain property taxes paid by it. The claim was allowed and appellants secured a judcial review in the Randolph Circuit Court.
The facts were stipulated and the court made special findings pursuant to Rule 1-7C and stated its conclusions of law thereon favorable to appellee, Anchor.
Appellants here challenge the correctness of the conclusions of law, as follows:
On the 21st day of January, 1959, the Court found the facts specially and stated its conclusions of law thereon in writing, which special findings of facts and conclusions of law were signed by the Honorable Paul A. Lennington, Special Judge in said proceeding, and filed with the Clerk of said Court on January 21, 1959, which special findings of facts and conclusions of law read as follows:
Pursuant to law, the Court now finds the facts in this cause specially and states its conclusions of law thereon as follows:
No. 1. That the Trustee and Advisory Board of White River Township, Randolph County, Indiana, did on the 30th day of August, 1955, after the publication of proper and sufficient notice thereof to all taxpayers, duly adopt its annual budget for the annual levy of taxes for the year 1955, for said township to be levied and collected in the year 1956. That as a part of said budget and levy of taxes said trustee and advisory board levied a cumulative building fund tax rate of 75 cents per each $100.00 valuation of taxable property in said township, which budget including the levy of said 75 cent rate for the purpose aforesaid, was duly filed with the Auditor of Randolph County, Indiana.
No. 2. That the tax rate so established by said Advisory Board aforesaid, including said rate of 75 cents for said cumulative building fund, was duly levied and collected as and for the taxes for said township for the year 1955, payable in the year 1956.
No. 3. That the Advisory Board of said White River Township, did not at any time prior to the adoption of said budget, including said rate of 75 cents for the cumulative building fund, adopt any resolution for the establishing of a cumulative building fund or any sum or rate of levy for taxation for the purpose of raising or providing funds for such cumulative building fund in the annual levy of taxes for the year 1955.
No. 4. That on March 1, 1955, the intervening claimant, Anchor Hocking Glass Corporation owned personal property in said township and subject to taxation thereby, of the assessed valuation for tax purposes of $2,369,720.00 and owned real estate located in said Township and subject to taxation thereby, of the assessed valuation for tax purposes of $202,020.00.
No. 5. That by virtue of the levy of taxes by said Township, at the rate of 75 cents, for a cumulative building fund, as aforesaid for the year 1955, due and payable in the year 1956, there was assessed by said township against the real and personal property of Anchor Hocking Glass Corporation, Township taxes, for said cumulative building fund, the total sum of $19,288.04, payable $9,644.02 as the first installment of taxes for the year 1955, payable in 1956 and the sum of $9,644.02 as the second installment of said taxes for the year 1955, payable in November, 1956, both of which installments were fully paid by the intervening claimant Anchor Hocking Glass Corporation.
No. 6. That the first installment of said taxes so paid as aforesaid was duly collected and thereafter paid to, White River Township, prior to the filing of any claim for the refund of any taxes by Anchor Hocking Glass Corporation.
No. 7. That on December 13, 1957, and before any part of the November or second installment of said taxes were disbursed to said Township by the Auditor of Randolph County, Indiana, the intervening claimant filed with the Auditor of Randolph County, Indiana, as the Clerk of the Board of County Commissioners of said County, its claim for the refund or repayment to it, of that part of the November installment of taxes, which it had paid pursuant to and because of the levy and collection of said rate of 75 cents levied for said cumulative building fund, in the amount of $9,644.02.
No. 8. That after notice to the Trustee and Advisory Board of White River Township, the Board of Commissioners of Randolph County, Indiana, held a hearing upon said claim and on January 6, 1958, duly allowed and ordered the same paid.
No. 9. That on February 3, 1958, said White River Township, duly and properly appealed said claim and the allowance thereof which appeal and the transcript of said proceeding before said County Commissioners, including the claim of Anchor Hocking Glass Corporation, was duly docketed in this cause for trial as cause numbered 9400, in the Randolph Circuit Court.
No. 10. That said sum of $9,644.02, had not been disbursed to said White River Township of Randolph County, Indiana, and is now being held by the auditor of Randolph County, Indiana, subject to the judgment and orders of this court to be made in this cause.
Upon the foregoing findings of fact the court now states as its conclusions of law, that:----
No. 1. The law is with the intervening claimant, Anchor Hocking Glass Corporation.
No. 2. That the levy of the tax rate of 75 cents for a cumulative building fund, made by White River Township, Randolph County, Indiana, and collected by the Treasurer of Randolph County, Indiana, from Anchor Hocking Glass Corporation, in the sum of $9,644.02, as a part of the second installment of said Township tax, was wholly illegal, without right and said levy and collection of said sum made pursuant thereto does not serve to vest in said White River Township of Randolph County, Indiana, any right or title in and to said sum.
No. 3. That the intervening claimant Anchor Hocking Glass Corporation, is entitled to recover from the Auditor of Randolph County, Indiana, upon the claim herein, the sum of $9,644.02 now in the hands of the Treasurer of Randolph County, Indiana.
No. 4. That the intervening claimant Anchor Hocking Glass Corporation is entitled to the allowance and payment of its claim to said sum in the amount of $9,644.02, and to a refund thereof by the payment of said claim in said amount by the Auditor of Randolph County, Indiana.
No. 5. That it is the duty of the Auditor of Randolph County, Indiana, to issue to Anchor Hocking Glass Corporation, forthwith, a proper and sufficient warrant in the sum of $9,644.02, in full payment of said claim and in full refund of said sum, as taxes illegally levied and collected.
Appellants here urge their each and every assignment of error, which assignments of error are as follows:
1. The Court erred in its conclusion of law No.1;
2. The Court erred in its conclusion of law No. 2;
3. The Court erred in its conclusion of law No. 3;
4. The Court erred in its conclusion of law No. 4;
5. The Court erred in its conclusion of law No. 5;
6. The Court erred in its each and every conclusion of law upon its special findings of facts.
From the facts found by the trial court and which are not challenged by the parties, it appears that the trustee and Advisory Board of White River Township, Randolph County, Indiana, on August 30, 1955, after the publication of proper and sufficient notice thereof to all taxpayers, duly adopted its annual budget for the annual levy of taxes for the year 1955, for said township to be levied and collected in the year 1956. As a part of the budget and levy of taxes, the Trustee and Advisory Board levied a cumulative building fund tax rate of 75 cents per each $100.00 valuation of taxable property in the township, which budget was duly filed in the office of the County Auditor.
The tax rate so established was duly levied and collected as and for the taxes for the township for the year 1955, payable in 1956.
The Advisory Board did not, at any time prior to the adoption of the budget, adopt any resolution for the establishing of a cumulative building fund or any sum or rate of levy for taxation for the purpose of raising or providing funds for such cumulative building fund in the annual levy of taxes for 1955.
Anchor paid taxes in 1956, and filed its claim for a refund of the part which had not been distributed to the township and which was based upon the rate of 75 cents for the cumulative building fund. The Commissioners allowed this claim and ordered it paid. The trial court concluded that the levy for the cumulative building fund was illegal and adjudged that Anchor be reimbursed.
Appellants argue that although the trustee and advisory board overlooked adopting a resolution establishing a cumulative building fund, and although there was no attempt to comply with the provisions of Burns' Stat. §§ 28-1109 and 28-1110, the tax, having been voluntarily paid, may not be recovered back in the absence of a statute making provision therefor, and that there is no statute making such provision.
That Anchor has no common-law remedy and must rely upon statutory authority, if any, as its exclusive remedy to obtain a refund or recovery of the taxes voluntarily paid by it is not questioned by the parties. 51 Am.Jur. Taxation, § 1167, p. 1005; The Board of Commissioners of St. Joseph County v. Ruckman, 1877, 57 Ind. 96; Sluder et al. v. Mahan, Treas., etc....
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...year 1938 referring to "taxes levied on March 1, 1938, and due and payable in May, 1939"); White River Sch. Twp. v. Anchor Hocking Glass Corp., 131 Ind.App. 242, 246, 168 N.E.2d 349, 350 (1960) (proceedings on a claim for refund of property taxes levied "as aforesaid for the year 1955, due ......