(145 N.E.) Appellee had already paid $2,486.32. On jerty in Center township except the property October 29, 1920, appellee tendered the treas-originally assessed by the state board of tax urer of Marion county $1,198.39 as the total commissioners. amount due from it as its second installment A demurrer to each of these paragraphs of of taxes for the year 1919. Said two sums answer was sustained, appellant withdrew of $2,486.32 and $1,198.39 constitute together its general denial, refused to plead further, the full amount of taxes for the year 1919 and judgment was rendered against it on dedue from appellee, without said void hori- murrer, from which this appeal is prosezontal increase under said pretended order cuted. of August 23, 1919. Said treasurer refused Appellee relies upon Fesler v. Bosson, 189 to accept said sum of $1,198.39 and demanded Ind. 484, 128 N. E. 145, and Bosson v. Lemcke payment of $2,486.32 as such second install- (Ind. Sup.) 137 N. E. 551, to sustain its conment, as shown by the tax duplicates then in tention that the horizontal increases upon the hands of the treasurer. Thereupon on which the taxes in question were collected said day appellee paid the treasurer $2,486. were wholly unauthorized and void; but, as 32, of which amount $1,287.93 was paid by we view this case, the Fesler Case has but appellee, not voluntarily, but under protest, little bearing in determining the question and in order to avoid the penalties which here involved. In that case it was held that would attach from the failure of appellee to the state board of tax commissioners had pay the same, and in order to prevent levy- acted without authority of law in ordering ing upon appellee's property by the taxing horizontal increases in the assessment of officers. The result of the void increases in property such as is averred in the petition, assessments was to increase the total assess- and it was held that such increases so orderment of appellee $89,496, upon which ap- ed by the state board were void. After that pellee has paid $1,287.93 as illegal taxes. the Legislature, at a special session, passed Said sum has not been distributed by the what is known as the Tuthill-Kiper Act (Acts treasurer, and appellee is entitled to a re- Spec. Sess. 1920, p. 153), which, after providfund thereof. There is a demand for such ing for the meeting of the state board to rerefund, together with 6 per cent. interest consider and review its order of August 23, thereon from the date of payment. It will 1919, and to certify its conclusion with refbe observed that there is no averment in the erence thereto to the auditors of the several complaint that appellee's property was as-counties affected by such order, provided by sessed at more than its true cash value, nor section 2 thatthat it was not assessed equally and pro

“Upon receipt of said certified conclusions portionally with other property. It is true provided for in section 1 of this act, by the that there is an averment that the increases county auditor, he shall immediately convene in assessments were “illegal and excessive,” the county board of review, * and said but we regard this as the pleader's conclu- county board of review shall proceed to review sion, based on the averments of illegal pro- and equalize the assessments on the property cedure preceding the conclusion.

in said several townships and other taxing Appellant answered its petition in three units for taxing purposes for the year 1919, and paragraphs: The first a general denial; the certify the same to the state board of tax com

missioners in the manner now required by law. second, in substance, that the value of ap

Thereupon the state board of tax compellee's property increased and upon missioners shall immediately proceed with the which taxes were paid was taxed and ap- equalization 'of assessments as between the peared upon the duplicates at no more than several counties of the state, both as to perits true cash value as defined by the statute, sonal property and real estate, and shall make and equally and proportionally with all other orders equalizing such assessments, and improperty; the third paragraph, în addition mediately thereafter certify such orders to the to allegations similar to the second, averred auditor of each of the counties of the

state, further that the valuations of appellee's and all other property, as entered upon the tax [1] It was under this section of the Tuthillduplicates, including the increases claimed Kiper Act that the county board of review, to be void, were used by the county auditor as averred in the petition, “took such action and included by him in his certificates of to- as in effect to readopt and reaffirm such pre. tal valuations to the various tax-levying bod- tended order of equalization of August 23, ies in 1919, and were used by such tax-levy- 1919," which action of the county board of ing bodies in fixing the rates to be collected; review and the state board is challenged by that all such rates were so reduced by the appellee as being illegal and void. This averuse of such total valuations as to make a ment of the complaint that the county board total rate of $1.60 on each $100, which was of review in effect readopted and reaffirmed the rate paid by appellee; that upon the such pretended order of equalization of Aubudgets of expense used by the various tax-gust 23, 1919, is but a conclusion of the lerying bodies a rate of $1.97 on each $100 pleader and amounts to no more than an would have been necessary if the increases averment that the order of equalization made complained of had not been used. The in- by the county board of review used the same creases in the assessments applied to all prop- percentages on various classes of property in


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taxing units as had been used by the state , entitle the appellant to the relief which he board in the former order. It will be pre- sought, citing numerous authorities to sus. sumed that the board of review performed tain the principle. the duty enjoined upon it by the statute In Crowder v. Riggs, 153 Ind. 158, 53 N. above quoted, and the fact that the board of E. 1019, the Supreme Court said: review applied the same percentages as had

“When any one seeks the aid of a court of been employed by the state board of tax equity to enjoin the assessment of property for commissioners will not justify the pleader's taxation or the collection of taxes, he cannot conclusion that the board of review merely re-obtain relief on the ground of the want or inaffirmed and readopted the state board order. sufficiency of notice, or other informalities or On the contrary, the order of the county irregularities. If the property is taxable, the board of review will be consideréd as being want of notice or the insufficiency thereof, or its own order made in discharging its duty any other irregularity or informality, does not

entitle the owner thereof to an injunction." under the statute.

The Bosson-Lemcke Case, supra, held that That case was an action to enjoin, while the Tuthill-Kiper Act is supplemental legis- the instant case is a suit for refund; but lation only, and that while section 2 of such being in assumpsit for money had and react does not provide therein for notice, yet ceived, and equitable in nature, there is such notice must be given under the provi- no difference as to the principle involved. sions of the 1919 tax law to which the Tut. Board v. Armstrong, 91 Ind. 529. hill-Kiper Act is supplemental. The court In Miller V. Vollmer, 153 Ind. 26, 53 N. then says:

E. 949, the auditor listed certain property "It thus appears, wholly aside from the ques- upon the tax duplicates without notice as tion of due process of law under the Fourteenth required by section 6409, Horner 1897, and Amendment to the federal Constitution, that there was a suit by the taxpayer to enjoin the taxing officers did not follow the processes the collection of taxes upon such omitted provided for in the 1919 tax law, to which the property, and the court says: Tuthill-Kiper Act declares itself to be 'supplemental only. The notices required by the 1919

“The mere fact, under the circumstances, tax law are consistent with and applicable to that he was not notified, as provided by section section 2 of the Tuthill-Kiper Act. It there- 142 of the Tax Statute (section 8560, Burns' fore follows that, for failure to give such no-|(R. S.) 1894), to appear and show cause, if tice, the orders of equalization complained of any, why this certificate ought not to have been must fail."

placed on the tax duplicate for assessment, will

not, alone, entitle him to the equitable relief It thus appears that so far as the Bosson- which he seeks in this action. It does not apLemcke Case controls, the order of equaliza- pear under the facts, that the failure to give tion complained of by appellee, and which it this notice has in any manner tended to prejusays the board of review accomplished in dice him in any of his substantial rights." effect by readopting and reaffirming the pre In McCrory v. O'Keefe, 162 Ind. 534, 70 X. tended order of equalization of August 23, E. 812, a taxpayer sought to enjoin the col1919, if void, is so because of failure to give lection of certain taxes in which the question notice. That authority does not hold that of notice was involved in making the as. the Tuthill-Kiper Act is void, nor that the sessment, and the court said: increases in assessments were wrongful and excessive. Appellee does not contend in this or its insufficiency, or any other irregularity

"If the property is taxable, want of notice, court that such act is void. The complaint or informality, does not entitle the owner of in that case had alleged, with other things, the property to an injunction." that no notice of any kind was given to the taxpayers of Marion county, Ind., and the

In Jones v. Summer, 27 Ind. 511, the accourt held that it stated a cause of action, tion of the board of equalization without noand the judgment of the trial court was re

tice to list omitted property and to increase versed, with instructions to overrule the de. the valuation of property greatly undervalmurrer to the complaint. The answers in ued was challenged, it then being the duty this case aver, in effect, and the demurrers under the law for the auditor upon notice to thereto admit, that appellee's property was

list omitted property, and to correct undernot assessed at more than its true cash value, valuations, and the court after saying that that it was assessed and the assessment in the amount was correctly charged to him in creased equally and proportionally with all the proper office, if it was not in the exact other property, and that, had it not been for

manner required by the rigid letter of the such increases, he, together with the other statute, says thattaxpayers, would have paid a rate of $1.97 “When he appeals to a court of equity, and instead of $1.60. This court, in the case of invokes its extraordinary writ of injunction, Schlosser Bros. v Huff, 74 Ind. App. 231, 128 he must rely upon some substantial equity, and N. E. 854, held that, as the property there cannot avail himself of naked irregularities, involved was subject to taxation, the mere from a liability confessed to be just

the neglect of mere forms, to shield himself

It would fact that the statutory notice was neither be difficult to imagine a given nor waived, standing alone, did not barren of equity than this, if this answer be




(145 N.E.) true. He committed serious errors in his list, / must do so because appellee has shown that which in conscience, and as a good citizen, he it was unjustly required to pay the increases, ought voluntarily to have corrected, but did which it claims to be illegal and void, and not. They were corrected, and now he asks to that it is bearing an undue burden because be secured in an advantage as the fruit of his it is not permitted to have a refund thereown blunder, merely because the correction, though just, was directed by the wrong author- of. In this appellee has failed. ity and without notice to him. The writ of in

The judgment is reversed, with instrucjunction cannot issue for such a purpose with-tions to the trial court to overrule the deout disregarding both principle and authority.” murrer to each paragraph of answer. [2] Under these authorities, appellee could

MCMAHAN, J., not participating. not have enjoined the collection of taxes, the refund of which it seeks, unless it could show that it had been substantially injured, and we are wholly unable to see why it should have a refund of such taxes so paid, unless BOARD OF COM'RS OF MARION COUNTY

V. NATIONAL BISCUIT CO. (No. 11823.) it is able to show that it has been substantially injured by such payment. Other au- (Appellate Court of Indiana, Division No. 2. thorities bearing upon this question are:

Nov. 13, 1924.) Musselman v. City of Logansport, 29 Ind. 533; Center & W. Gravel Road Co. v. Black, H. 0. Chamberline, Judge.

Appeal from Circuit Court, Marion County; 32 Ind. 468; City of Delphi v. Bowen, 61 Ind. 29; Ricketts v. Spraker, 77 Ind. 371 ;

Wm. A. Hough, of Greenfield, and Willis C. Board of Com’rs of Howard County v. Arm- Nusbaum and Emsley W. Johnson, both of In. strong, 91 Ind. 532; Smith v. Rude, 131 Ind. | dianapolis, for appellant. 150, 30 N. E. 947; Reynolds v. Bowen, 138 Miller, Dailey & Thompson, of Indianapolis, Ind. 434, 36 N. E. 756, 37 N. E. 962 ; Senour for appellee. v. Matchett, 140 Ind. 636, 40 N. E. 122; Hunter Stone Co. v. Woodard, 152 Ind. 474, 53

NICHOLS, P. J. Judgment in this case reN. E. 947; Cleveland, etc., R. Co. v. Town versed on the authority of Board of Commisof Waynetown, 153 Ind. 550, 552, 55 N. E. Co. (Ind. App.) 145 N. E. 504, decided at this

sioners of Marion County v. Western Electric 451; Gallup v. Schmidt, 154 Ind. 196, 56 N.

term. E. 443; Hubbard v. Goss, 157 Ind. 485, 62 N. E. 36; Citizens' National Bank v. Klauss, 47 Ind. App. 57, 93 N. E. 681. Appellee, an individual taxpayer, by its

STUTESMAN v. SIGERFOOS. (No. 12033.) demurrer admitting the averments of the (Appellate Court of Indiana, Division No. 1. answers that its property was not assessed

Dec. 2, 1924.) at more than its true cash value, and that

Injunction Om 118(3)-Complaint to enjoin it has paid taxes equally and proportionally

township trustee from erecting new schoolwith all other taxpayers, seeks to recover

houses on sites other than those of old build. from the county because of the failure of the

ings held demurrable for failure to negative board of review to give notice, though the authority of trustee. burden that appellee has been required to In action to enjoin township trustee from carry is proportionally no more than that erecting new schoolhouses on sites different borne by each and every other taxpayer of from those of old buildings, complaint alleging the taxing district of which it is a part. We noncompliance with Burns' Ann. St. 1914, $ do not see that appellee has been substàn- | 6417, prescribing procedure for relocation of tially injured by such requirement, and un

school building sites, held demurrable for fail

ure to negative authority of trustee to proceed less it so appears appellee cannot recover.

under section 6421. In holding that the paragraphs of answer state a good defense to appellee's complaint,

Appeal from Superior Court, Elkhart we are holding that if the averments of such County; Wm. B. Hile, Judge. answers are proven, appellee's property was assessed at no more than its true cash value,

Action by Ceylon Stutesman against Wm. and that it has paid only its just proportion J. Sigerfoos, trustee, etc. Judgment of non

Affirmed. of the tax necessary to meet the budget of suit, and plaintiff appeals. public expenses determined upon by the tax Harman & Jay, of Elkhart, for appellant. ing officials. If appellee can require a Church & Chester, of Elkhart, for appelfund of the tax paid by it, then every other | lee. taxpayer of the state so affected will have the same rights. The far-reaching and dis ENLOE, J. This was an action by the astrous effect upon the fiscal affairs of the appellant, a resident freeholder and taxcounty and state under such conditions would payer of Concord township, Elkhart county, be such that, before this court by its hold- Ind., against the appellee, the trustee of ing would make such a condition possible, it said township seeking an injunction against

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appellee, enjoining him from selling bonds, for such proposed change of location of said of said township and erecting new school school building, and upon such petition shall houses.

first procure an order from such county superIt appears from the averments of the com intendent authorizing him to change the site

and location of such school building and remove plaint that, prior to the bringing of this action, said township contained 12 school dis. Provided, that said petition shall be signed by

said building to its new site and location; tricts; that the said trustee had determined said trustee and the majority of the patrons to consolidate school districts numbered of the school where said building is located, 2 and 4, and to build a new elementary and satisfactory proof shall be made to said school building for such consolidated dis- county superintendent that the persons signtricts, the proposed location of such new ing said petition constitute a majority of the building being one-half mile from the loca- patrons of said school." tion of the old schoolhouse in said district 4, and that said trustee was proposing also 138 N. E. 767, this court said:

In the case of Flora v. Brown (Ind. App.) to consolidate districts 6, 7, and 8 of said township, and to build a new elementary

“In this case it was incumbent upon the apschool building, for such consolidated dis- pellee, before he would be entitled to a decree tricts at a point about 142 miles from the restraining the appellant in the matter comsite of the old schoolhouse in said district plained of, to establish such a state of facts as

would leave the appellant without any authority No. 7; that said trustee, under the author- in the premises, under

any existing ity of the advisory board of said township, statute. The presumption is that the officers had advertised for bids for the building of are doing their duty, keeping within the law, said proposed school buildings, and was and hence the party who challenges the act of proposing to award, subject to the sale of the officer must show that there is no authority the bonds of said township, which sale had in the officer to do the act in question.” been authorized by the advisory board, the contracts for the construction of said build Tested by the foregoing rule the averments ings.

of the complaint in question do not negative It was also alleged, and this was the all authority or right of the appellee, unbasis of the action :

der our law, to do the acts in question; it “That said trustee has not procured a peti- trustee to proceed, in the matter in question,

does not negative the authority of said tion signed by such trustee and a majority of the patrons of the school where said old build- under the provisions of section 6421, Burns' ings are located in any or either of said dis- 1914, which confers ample authority upon tricts which he now proposes to relocate and the trustee under the conditions mentioned abandon, as required by law for the change of therein to do what the trustee was alleged as said school site or any of them;

that being about to do in this case. Leedy v. said trustee has never presented to the county Idle, 69 Ind. App. 105, 121 N. E. 323. The superintendent of schools of Elkhart county, court did not err in sustaining said demurInd., a petition which stated the place and par

rer. ticular point to where it is desired to change and relocate the site of said schoolhouses situ

Judgment affirmed., ate in said districts 2 and 4 or either of them, and remove the same thereto, as required by section 6417, Burns' Revised Statutes 1914: that said trustee never procured an order from BOARD OF COM’RS OF VIGO COUNTY V. the county superintendent of schools of said

HALE. (No. 11903.) county to change the site and location of any of such schoolhouses in said districts, nor any (Appellate Court of Indiana, Division No. 1. of them, nor for the change and re-establish

Nov. 14, 1924.) ment of the site therefor, as required by said statute."

1. Taxation Om 338—Mineral rights in land tax.

able as real estate. A demurrer to this complaint was sus

Mineral rights in land are subject of horitained, and this ruling is the only question zontal severance, and are taxable as real espresented by this appeal.

tate, but it is only where there is separate ownSection 6417, Burns' 1914, is as follows:

ership thereof that law requires separate as“That whenever it becomes necessary for the 1921, § 10139m5.

sessment of such rights. Burns' Ann. St. Supp. trustee of any township in this state to change and re-establish the site of any school build- ! 2. Taxation Ew338–County auditor must diing and remove said building to a new site and minish assessed valuation of whole tract by location therefor, such trustee shall first pre amount fixed on transferred portion thereof. sent to the county superintendent of schools Under Tax Act 1919, § 37, providing that, of the county in which township is so situated, when tract of land is divided by sale or othera petition setting forth therein the place and wise, county auditor shall transfer same on particular point to where it is desired to change last appraisement list and apportion valuation and relocate the site of any such building, and thereof, county auditor must diminish assessed to remove the same thereto, together with a valuation of the whole by amount of valuation brief statement of the purposes and reasons fixed on part transferred.

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(145 N.E.) 3. Taxation em 543(6) - Allegations in com- , clay, and minerals underlying the surface" of

plaint for refund of tax held to show that the tract of land so assessed for taxation; plaintiff's mineral rights in land were as that the portion of the tract of land so sold sessed.

and conveyed was at once by the county auIn action by owner of land for refund of ditor transferred and placed upon the tax taxes, on ground that, after land had been assessed, he had conveyed mineral rights therein duplicate of Vigo county in the name of the to another, allegations in complaint held to suf-Vigo American Clay Company, "at a valuaficiently show that both land and mineral rights tion of $7,640, and the said sum was and retherein were assessed for taxation,

mained the assessed value thereof for the 4. Pleading 130, 367 (2)-Facts controvert. years 1920, 1921, and 1922, in the name of

ing those averred in complaint should be set said Clay Company for said years, and the up as defense.

taxes for the years 1920 and 1921 were duly Defendant, desiring more definite averments paid by said Clay Company for said years in complaint, should file motion to make com

in the total sum of $337.68"; that, plaint more specific, and, if facts exist avoid after the conveyance to the Clay Company, ing facts averred in complaint, they should be the county auditor for each of the years 1920 pleaded as a defense.

and 1921, as was his duty, failed and neglect

ed "to deduct from the assessed valuation Appeal from Superior Court, Vigo County ; of said real estate so assessed to this plainJohn E. Cox, Judge.

tiff, to wit, the sum of $13,400 so made and Claim for refund of tax was filed by Frank had in the year 1919, the said valuation so R. Hale against Board of Commissioners of placed on said minerals when the same were Vigo County. From an order disallowing transferred to the tax duplicate in the name claim, claimant appealed to superior court, of the Clay Company, but that the assesswhere judgment was entered ordering a re- ment of $13,400 was carried on the duplicate fund, from which judgment Board of Com against this plaintiff for the years 1920 and missioners appeal. Affirmed.

1921, and the taxes were paid by this plainJohn O'Brien, of Terre Haute, for appel- tiff for each of those years," in the total lant.

sum of $337.68; that no improvements were McNutt, Wallace, Harris & Randel, of made on the lands within the years 1920 and Terre Haute, for appellee.

1921, and no assessment was made for im

provements; that the valuation for assessREMY, J. This suit was commenced by ment to the amount of $7,640 for each of the appellee filing before the board of commis- years 1920 and 1921 was wrongful, and the sioners of Vigo county a claim for the re

taxes assessed were by the county treasurer fund of taxes alleged to have been wrong. wrongfully collected. fully assessed and collected. The suit is It is appellant's contention that the compursuant to section 5813, R. S. 1881 (section plaint contains no averment that, when the 6088, Burns' 1914). The claim was disal- land was assessed on March 1, 1919, the lowed, and from the order of disallowance underlying coal and minerals were taken inan appeal was taken to the Vigo superior to consideration, and is therefore insufficient court, where claimant, appellee herein, filed as against a demurrer for want of sufficient a formal complaint. To the complaint appel- facts. We cannot concur in this view. lant filed a demurrer for want of sufficient

[1, 2] The law is well established that the facts, which was overruled. Appellant, elect- mining rights in land are the subject of ing to abide the ruling on the demurrer, re-horizontal severance, and are taxable as real fused to plead further, and the court ren

estate. Board, etc., v. Latta's Creek Coal Co. dered judgment ordering a refund of the tax-(1913) 179 Ind. 212, 100 N. E. 561. However, es, from which judgment this appeal is pros- it is only where there is separate ownership ecuted. The action of the court in overrul- of the mining rights that the law requires a ing the demurrer is assigned as error.

separate assessment of such rights. Section The material averments of the complaint 142 of Tax Act of 1919; Acts 1919, p. 276; are, in substance, that on March 1, 1919, ap- section 10139m5, Burns' Supp. 1921. It is alpellee was the owner in fee simple of a cer

so the law in this state, as provided by stattain tract of land in Vigo county, which on

ute (section 37 of the Tax Act of 1919; Acts that day was “duly assessed for taxation at 1919, p. 215; section 10188, Burns' 1908) the sum of $13,400,” it being "the quadren

thatnial assessment for the years 1919, 1920, "Whenever a division or partition has been 1921, and 1922”; that the "assessment was made, or other changes take place in the ownduly placed upon the tax duplicate” by the ership of any tract or lot of land, or any part county auditor, and placed in the hands of thereof, by conveyance, sale, devise, or descent, the treasurer of Vigo county for collec- shall transfer the same on the last appraisement

the county auditor on being satisfied thereof, tion; that on September 28, 1919, appellee list, and apportion the same, and the valuation sold, and by warranty deed conveyed, to the thereof, with all delinquent taxes, to the severVigo American Clay Company “the coal, J al owners."

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