(145 N.E.) erty in Center township except the property originally assessed by the state board of tax commissioners. A demurrer to each of these paragraphs of answer was sustained, appellant withdrew its general denial, refused to plead further, and judgment was rendered against it on demurrer, from which this appeal is prosecuted. Appellee relies upon Fesler v. Bosson, 189 Ind. 484, 128 N. E. 145, and Bosson v. Lemcke (Ind. Sup.) 137 N. E. 551, to sustain its con Appellee had already paid $2,486.32. On October 29, 1920, appellee tendered the treasurer of Marion county $1,198.39 as the total amount due from it as its second installment of taxes for the year 1919. Said two sums of $2,486.32 and $1,198.39 constitute together the full amount of taxes for the year 1919 due from appellee, without said void horizontal increase under said pretended order of August 23, 1919. Said treasurer refused to accept said sum of $1,198.39 and demanded payment of $2,486.32 as such second installment, as shown by the tax duplicates then intention that the horizontal increases upon the hands of the treasurer. Thereupon on said day appellee paid the treasurer $2,486. 32, of which amount $1,287.93 was paid by appellee, not voluntarily, but under protest, and in order to avoid the penalties which would attach from the failure of appellee to pay the same, and in order to prevent levying upon appellee's property by the taxing officers. The result of the void increases in assessments was to increase the total assessment 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. Said sum has not been distributed by the treasurer, and appellee is entitled to a refund thereof. There is a demand for such refund, together with 6 per cent. interest thereon from the date of payment. It will which the taxes in question were collected were wholly unauthorized and void; but, as we view this case, the Fesler Case has but little bearing in determining the question here involved. In that case it was held that the state board of tax commissioners had acted without authority of law in ordering horizontal increases in the assessment of property such as is averred in the petition, and it was held that such increases so order the Legislature, at a special session, passed what is known as the Tuthill-Kiper Act (Acts Spec. Sess. 1920, p. 153), which, after providing for the meeting of the state board to reconsider and review its order of August 23, 1919, and to certify its conclusion with reference thereto to the auditors of the several counties affected by such order, provided by section 2 that be observed that there is no averment in the complaint that appellee's property was assessed at more than its true cash value, nor that 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. Appellant answered its petition in three paragraphs: The first a general denial; the second, in substance, that the value of appellee's property as increased and upon which taxes were paid was taxed and appeared upon the duplicates at no more than its true cash value as defined by the statute, and equally and proportionally with all other property; the third paragraph, în addition to allegations similar to the second, averred further that the valuations of appellee's and all other property, as entered upon the tax duplicates, including the increases claimed to be void, were used by the county auditor and included by him in his certificates of total valuations to the various tax-levying bodies in 1919, and were used by such tax-levying bodies in fixing the rates to be collected; that all such rates were so reduced by the use of such total valuations as to make a total rate of $1.60 on each $100, which was the rate paid by appellee; that upon the budgets of expense used by the various taxlevying bodies a rate of $1.97 on each $100 would have been necessary if the increases complained of had not been used. The increases in the assessments applied to all prop in said several townships and other taxing units for taxing purposes for the year 1919, and certify the same to the state board of tax commissioners in the manner now required by law. * Thereupon the state board of tax commissioners shall immediately proceed with the equalization of assessments as between the several counties of the state, both as to personal property and real estate, and shall make orders equalizing such assessments, and immediately thereafter certify such orders to the auditor of each of the counties of the state. * [1] It was under this section of the TuthillKiper Act that the county board of review, as averred in the petition, "took such action as in effect to readopt and reaffirm such pretended order of equalization of August 23, 1919," which action of the county board of review and the state board is challenged by appellee as being illegal and void. This averment of the complaint that the county board of review in effect readopted and reaffirmed such pretended order of equalization of August 23, 1919, is but a conclusion of the pleader and amounts to no more than an averment that the order of equalization made by the county board of review used the same percentages on various classes of property in In Crowder v. Riggs, 153 Ind. 158, 53 N. E. 1019, the Supreme Court said: 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 sussumed that the board of review performed tain the principle. the duty enjoined upon it by the statute above quoted, and the fact that the board of review applied the same percentages as had been employed by the state board of tax commissioners will not justify the pleader's conclusion that the board of review merely reaffirmed and readopted the state board order. On the contrary, the order of the county board of review will be considered as being its own order made in discharging its duty under the statute. The Bosson-Lemcke Case, supra, held that the Tuthill-Kiper Act is supplemental legislation only, and that while section 2 of such act does not provide therein for notice, yet such notice must be given under the provisions of the 1919 tax law to which the Tuthill-Kiper Act is supplemental. The court then says: "It thus appears, wholly aside from the question of due process of law under the Fourteenth Amendment to the federal Constitution, that the taxing officers did not follow the processes provided for in the 1919 tax law, to which the Tuthill-Kiper Act declares itself to be 'supplemental only.' The notices required by the 1919 tax law are consistent with and applicable to section 2 of the Tuthill-Kiper Act. It therefore follows that, for failure to give such notice, the orders of equalization complained of must fail." It thus appears that so far as the BossonLemcke Case controls, the order of equalization complained of by appellee, and which it says the board of review accomplished in effect by readopting and reaffirming the pretended order of equalization of August 23, 1919, if void, is so because of failure to give notice. That authority does not hold that the Tuthill-Kiper Act is void, nor that the increases in assessments were wrongful and excessive. Appellee does not contend in this court that such act is void. The complaint in that case had alleged, with other things, that no notice of any kind was given to the taxpayers of Marion county, Ind., and the court held that it stated a cause of action, and the judgment of the trial court was reversed, with instructions to overrule the demurrer to the complaint. The answers in this case aver, in effect, and the demurrers thereto admit, that appellee's property was not assessed at more than its true cash value, that it was assessed and the assessment in creased equally and proportionally with all other property, and that, had it not been for such increases, he, together with the other taxpayers, would have paid a rate of $1.97 instead of $1.60. This court, in the case of Schlosser Bros. v Huff, 74 Ind. App. 231, 128 N. E. 854, held that, as the property there involved was subject to taxation, the mere fact that the statutory notice was neither given nor waived, standing alone, did not "When any one seeks the aid of a court of equity to enjoin the assessment of property for taxation or the collection of taxes, he cannot obtain relief on the ground of the want or insufficiency of notice, or other informalities or irregularities. If the property is taxable, the want of notice or the insufficiency thereof, or any other irregularity or informality, does not entitle the owner thereof to an injunction." That case was an action to enjoin, while the instant case is a suit for refund; but being in assumpsit for money had and received, and equitable in its nature, there is no difference as to the principle involved. Board v. Armstrong, 91 Ind. 529. In Miller v. Vollmer, 153 Ind. 26, 53 N. E. 949, the auditor listed certain property upon the tax duplicates without notice as required by section 6409, Horner 1897, and there was a suit by the taxpayer to enjoin the collection of taxes upon such omitted property, and the court says: "The mere fact, under the circumstances, that he was not notified, as provided by section 142 of the Tax Statute (section 8560, Burns' [R. S.] 1894), to appear and show cause, if any, why this certificate ought not to have been placed on the tax duplicate for assessment, will not, alone, entitle him to the equitable relief which he seeks in this action. It does not appear under the facts, that the failure to give this notice has in any manner tended to prejudice him in any of his substantial rights." In McCrory v. O'Keefe, 162 Ind. 534, 70 N. E. 812, a taxpayer sought to enjoin the collection of certain taxes in which the question of notice was involved in making the assessment, and the court said: "If the property is taxable, want of notice, or its insufficiency, or any other irregularity or informality, does not entitle the owner of the property to an injunction." In Jones v. Summer, 27 Ind. 511, the action of the board of equalization without notice to list omitted property and to increase the valuation of property greatly undervalued was challenged, it then being the duty under the law for the auditor upon notice to list omitted property, and to correct undervaluations, and the court after saying that the amount was correctly charged to him in the proper office, if it was not in the exact manner required by the rigid letter of the statute, says that "When he appeals to a court of equity, and invokes its extraordinary writ of injunction, he must rely upon some substantial equity, and cannot avail himself of naked irregularities, or the neglect of mere forms, to shield himself from a liability confessed to be just It would be difficult to imagine a case more barren of equity than this, if this answer be (145 N.E.) The judgment is reversed, with instructions to the trial court to overrule the demurrer to each paragraph of answer. true. He committed serious errors in his list, I 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 injunction cannot issue for such a purpose without disregarding both principle and authority." [2] Under these authorities, appellee could 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 it is able to show that it has been substantially injured by such payment. Other authorities bearing upon this question are: Musselman v. City of Logansport, 29 Ind. 533; Center & W. Gravel Road Co. v. Black, 32 Ind. 468; City of Delphi v. Bowen, 61 Ind. 29: Ricketts v. Spraker, 77 Ind. 371; Board of Com'rs of Howard County v. Armstrong, 91 Ind. 532; Smith v. Rude, 131 Ind. 150, 30 N. E. 947; Reynolds v. Bowen, 138 Ind. 434, 36 N. E. 756, 37 N. E. 962; Senour v. Matchett, 140 Ind. 636, 40 N. E. 122; Hunter Stone Co. v. Woodard, 152 Ind. 474, 53 N. E. 947; Cleveland, etc., R. Co. v. Town of Waynetown, 153 Ind. 550, 552, 55 N. E. 451; Gallup v. Schmidt, 154 Ind. 196, 56 N. 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 demurrer admitting the averments of the answers that its property was not assessed at more than its true cash value, and that it has paid taxes equally and proportionally with all other taxpayers, seeks to recover from the county because of the failure of the board of review to give notice, though the burden that appellee has been required to carry is proportionally no more than that borne by each and every other taxpayer of the taxing district of which it is a part. We do not see that appellee has been substàntially injured by such requirement, and unless it so appears appellee cannot recover. MCMAHAN, J., not participating. BOARD OF COM'RS OF MARION COUNTY V. NATIONAL BISCUIT CO. (No. 11823.) H. O. Chamberline, Judge. ~118(3)—Complaint to enjoin township trustee from erecting new schoolhouses on sites other than those of old buildings held demurrable for failure to negative authority of trustee. In action to enjoin township trustee from erecting new schoolhouses on sites different from those of old buildings, complaint alleging noncompliance with Burns' Ann. St. 1914, § 6417, prescribing procedure for relocation of school building sites, held demurrable for failure to negative authority of trustee to proceed under section 6421. Appeal from Superior Court, Elkhart County; Wm. B. Hile, Judge. Action by Ceylon Stutesman against Wm. J. Sigerfoos, trustee, etc. Judgment of nonsuit, and plaintiff appeals. Affirmed. In holding that the paragraphs of answer state a good defense to appellee's complaint, we are holding that if the averments of such answers are proven, appellee's property was assessed at no more than its true cash value, and that it has paid only its just proportion of the tax necessary to meet the budget of public expenses determined upon by the taxing officials. If appellee can require a refund 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 disastrous effect upon the fiscal affairs of the County and state under such conditions would be such that, before this court by its holding would make such a condition possible, it Harman & Jay, of Elkhart, for appellant. ENLOE, J. This was an action by the appellant, a resident freeholder and taxpayer of Concord township, Elkhart county, Ind., against the appellee, the trustee of said township seeking an injunction against For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes appellee, enjoining him from selling bonds of said township and erecting new schoolhouses. for such proposed change of location of said school building, and upon such petition shall first procure an order from such county superintendent authorizing him to change the site and location of such school building and remove said building to its new site and location; Provided, that said petition shall be signed by said trustee and the majority of the patrons of the school where said building is located, and satisfactory proof shall be made to said county superintendent that the persons signing said petition constitute a majority of the patrons of said school." In the case of Flora v. Brown (Ind. App.) 138 N. E. 767, this court said: It appears from the averments of the complaint that, prior to the bringing of this action, said township contained 12 school districts; that the said trustee had determined to consolidate school districts numbered 2 and 4, and to build a new elementary school building for such consolidated districts, the proposed location of such new building being one-half mile from the location of the old schoolhouse in said district 4, and that said trustee was proposing also 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 11⁄2 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 buildings. Tested by the foregoing rule the averments 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 does not negative the authority of said trustee to proceed, in the matter in question, under the provisions of section 6421, Burns' 1914, which confers ample authority upon the trustee under the conditions mentioned therein to do what the trustee was alleged as being about to do in this case. Leedy v. Idle, 69 Ind. App. 105, 121 N. E. 323. The court did not err in sustaining said demurrer. "That said trustee has not procured a petition signed by such trustee and a majority of the patrons of the school where said old buildings are located in any or either of said districts which he now proposes to relocate and abandon, as required by law for the change of said school site or any of them; * that said trustee has never presented to the county superintendent of schools of Elkhart county, Ind., a petition which stated the place and particular point to where it is desired to change and relocate the site of said schoolhouses situate 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 county to change the site and location of any Judgment affirmed. HALE. (No. 11903.) Nov. 14, 1924.) of such schoolhouses in said districts, nor any (Appellate Court of Indiana, Division No. 1. of them, nor for the change and re-establishment of the site therefor, as required by said statute." sus A demurrer to this complaint was tained, and this ruling is the only question presented by this appeal. Section 6417, Burns' 1914, is as follows: "That whenever it becomes necessary for the trustee of any township in this state to change and re-establish the site of any school building and remove said building to a new site and location therefor, such trustee shall first present to the county superintendent of schools of the county in which township is so situated, a petition setting forth therein the place and particular point to where it is desired to change and relocate the site of any such building, and to remove the same thereto, together with a brief statement of the purposes and reasons I. Taxation 338-Mineral rights in land tax able as real estate. Mineral rights in land are subject of horizontal severance, and are taxable as real estate, but it is only where there is separate ownership thereof that law requires separate assessment of such rights. Burns' Ann. St. Supp. 1921, § 10139m5. 2. Taxation 338-County auditor must diminish assessed valuation of whole tract by amount fixed on transferred portion thereof. Under Tax Act 1919, § 37, providing that, when tract of land is divided by sale or otherwise, county auditor shall transfer same on last appraisement list and apportion valuation thereof, county auditor must diminish assessed valuation of the whole by amount of valuation fixed on part transferred. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) 3. Taxation -543(6) Allegations in complaint for refund of tax held to show that plaintiff's mineral rights in land were assessed. In action by owner of land for refund of taxes, on ground that, after land had been assessed, he had conveyed mineral rights therein to another, allegations in complaint held to sufficiently show that both land and mineral rights therein were assessed for taxation. 4. Pleading 130, 367(2)—Facts controverting those averred in complaint should be set up as defense. Defendant, desiring more definite averments in complaint, should file motion to make complaint more specific, and, if facts exist avoiding facts averred in complaint, they should be pleaded as a defense. clay, and minerals underlying the surface" of the tract of land so assessed for taxation; that the portion of the tract of land so sold and conveyed was at once by the county auditor transferred and placed upon the tax duplicate of Vigo county in the name of the Vigo American Clay Company, “at a valuation of $7,640, and the said sum was and remained the assessed value thereof for the years 1920, 1921, and 1922, in the name of said Clay Company for said years, and the taxes for the years 1920 and 1921 were duly paid by said Clay Company for said years in the total sum of $337.68"; that, after the conveyance to the Clay Company, the county auditor for each of the years 1920 and 1921, as was his duty, failed and neglected "to deduct from the assessed valuation * * Appeal from Superior Court, Vigo County; of said real estate so assessed to this plainJohn E. Cox, Judge. Claim for refund of tax was filed by Frank R. Hale against Board of Commissioners of Vigo County. From an order disallowing claim, claimant appealed to superior court, where judgment was entered ordering a refund, from which judgment Board of Commissioners appeal. Affirmed. tiff, to wit, the sum of $13,400 so made and had in the year 1919, the said valuation so placed on said minerals when the same were transferred to the tax duplicate in the name of the Clay Company, but that the assessment of $13,400 was carried on the duplicate against this plaintiff for the years 1920 and 1921, and the taxes were paid by this plain John 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 improvements; that the valuation for assessment to the amount of $7,640 for each of the years 1920 and 1921 was wrongful, and the taxes assessed were by the county treasurer REMY, J. This suit was commenced by appellee filing before the board of commissioners of Vigo county a claim for the refund 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, refused to plead further, and the court rendered judgment ordering a refund of the taxes, from which judgment this appeal is prosecuted. The action of the court in overruling the demurrer is assigned as error. horizontal severance, and are taxable as real estate. Board, etc., v. Latta's Creek Coal Co. (1913) 179 Ind. 212, 100 N. E. 561. However, it is only where there is separate ownership of the mining rights that the law requires a separate assessment of such rights. Section 142 of Tax Act of 1919; Acts 1919, p. 276; section 10139m5, Burns' Supp. 1921. It is also the law in this state, as provided by statute (section 37 of the Tax Act of 1919; Acts 1919, p. 215; section 10188, Burns' 1908) that The material averments of the complaint are, in substance, that on March 1, 1919, appellee was the owner in fee simple of a certain tract of land in Vigo county, which on that day was "duly assessed for taxation at the sum of $13,400," it being "the quadrennial assessment for the years 1919, 1920, 1921, and 1922"; that the "assessment was duly placed upon the tax duplicate" by the county auditor, and placed in the hands of the treasurer of Vigo county for collection; that on September 28, 1919, appellee sold, and by warranty deed conveyed, to the Vigo American Clay Company "the coal, al owners." "Whenever a division or partition has been made, or other changes take place in the ownership of any tract or lot of land, or any part thereof, by conveyance, sale, devise, or descent, shall transfer the same on the last appraisement the county auditor on being satisfied thereof, list, and apportion the same, and the valuation thereof, with all delinquent taxes, to the sever For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |