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The City of Indianapolis v. Vajen.

6345, R. S. 1881). After the duplicate statements had been delivered, as provided by law, the assessor proceeded to assess the shares against the several owners thereof, assessing against the plaintiff on account of the shares owned by him the sum $21,935.67. This amount was duly extended on the tax duplicate, and a tax amounting to $186.45 levied and extended against the latter on his stock for the year 1880. When the plaintiff made up his assessment list for that year he gave notice of his indebtedness, and demanded of the assessor the right to deduct from the value of his bank stock the amount of bona fide debts owing'by him. This the assessor refused to allow, on the ground, as he claimed, that such deductions were not authorized by law. The plaintiff thereupon made return of his personal property upon the ordinary blank, without any statement thereon of his stock or indebtedness. At the proper time the tax duplicate, with the tax thereon extended, was delivered to the city treasurer for collection. Vajen at first refused to pay the tax against his bank stock. Subsequently, on the 28th day of September, 1881, after the treasurer had made demand, the plaintiff paid the tax, protesting that, for the reasons above mentioned, the taxes against his bank stock were illegally and erroneously assessed.

Similar proceedings, substantially, were had with reference to the assessment of 1881, the amount assessed for that year being $273.37. The taxes for 1881 were paid after the duplicate was delivered to the city treasurer, before any demand by the officer, the plaintiff demanding from the treasurer a deduction on account of his indebtedness, which demand was refused. In each case proper demand was made from the city by petition praying for the refunding of the taxes.

Upon the foregoing facts the court stated as its conclusions of law, that the payments were voluntarily made, but that, under the ruling in City of Indianapolis v. McAvoy, 86 Iud. 587, the plaintiff below was, nevertheless, entitled to recover from the city the several amounts thus paid.

The plaintiff below excepted to the first conclusion of law The City of Indianapolis r. Vajen.

stated by the court, and the city excepted to the second.

Error and cross error are assigned by the parties respectively. There is no controversy but that, under the ruling in Waason v. First Nat'l Bank, etc., 107 Ind. 206, the plaintiff was entitled to deduct his bona fide indebtedness from the value of his bank stock, if proper steps to that end had been taken before payment of the tax.

The questions discussed are, were the payments to the city treasurer, underthecircumstancesasdisclosed, voluntary? and was the plaintiff entitled to recover the amounts paid, in any event, as the facts appear, whether the payments were voluntary or involuntary?

On behalf of the city, it is contended that the plaintiff had the right, and that it was his duty, to make out and return to the assessor under oath a list of his personal property, exhibiting on such list the amount of his credits, and showing the amount of his indebtedness, which he claimed the right to deduct. Having failed so to make and return his list, the argument is, that the demand made upon the assessor and treasurer to be allowed to make the deduction goes for nothing. This argument is predicated upon sections 6330 to 6334, R. S. 1881, inclusive. These sections provide for the listing and return of personal property by the owner for purposes of taxation. Provision is made for a statement by the lister of the credits due and owing him, and also that he shall be entitled to deduct from the gross amount of his credits the amount of all bona fide debts owing by him. The latter section provides that the assessor shall require that all deductions claimed shall be verified by the oath of the person claiming the deduction, and that the oath shall form part of the statement of the person listed. Whatever force ther<> might be in the position contended for, under other circumstances, it is entitled to no consideration as applied to the iacts in the case before us. The manner of listing and assessing bank and other corporate stocks is peculiar, as compared with the listing of other personal property. In respect The City of Indianapolis v. Vajen.

to shares in a banking corporation, section 6345, R. S. 1881, makes it the duty of the president, cashier, or other accounting officer of each bank located within this State to make duplicate statements, under oath, showing the number of shares comprising the capital stock of the bank, and the name and residence of each stockholder, with the number of shares owned by each, and what he deems the fair cash value of each share, and the fair cash value of the entire capital stock of the bank. One of these statements is to be delivered to the township assessor, and the other to the county auditor. It is then made the duty of the assessor to list, assess and return the capital stock, in all respects the same as similar property belonging to other corporations and individuals. An examination of the list or schedule which the assessor is required to furnish each owner of personal property, as well as a consideration of the several statutes, will make it apparent that it was not contemplated that owners of bank shares, or, indeed, shares in any domestic corporation doing business within this State,'should list their shares of stock with their other personal property. It would seem, therefore, that the statement of credits and the deduction of indebtedness for which specific provision is made, and which is required to be verified by the oath of each owner of personal property, and returned with his assessment, is not applicable to bank shares and such deductions therefrom as the owner may be entitled to make.

The right of owners of national bank stock to deduct from its value the amount of their bona fide indebtedness results rather from the construction which the Supreme Court of the United States has given the law under which national banking associations are organized, and the revenue laws of the States as applied to such associations, than from any specific provision to that effect in the revenue law of this State. While we may assume that the Legislature of the State, acting in subordination to the law of Congress, contemplated that such deductions might be made, we are compelled to The City of Indianapolis v. Vajen.

admit that no special provision is found in the statute pointing out the precise method by which that end is to be accomplished. Since, therefore, one whose moneyed capital is invested in shares in a national banking association can not put such capital down on his assessment list as credits due and owing him, and deduct therefrom his bona fide indebtedness, it follows that the only practical method by which he can obtain the benefit of the law is to notify the assessor, at the proper time, of the amount of his indebtedness not already deducted from other credits on his tax list, and demand that the proper reduction be made on the list which the assessor is required to make and return under section 6345. McMahon, In re, v. Palmer, 102 N. Y. 176 (55 Am. R. 796). When such a deduction is claimed, it would doubtless be ihe duty of the assessor to require that the amount thereof should be verified by the oath of the person claiming the deduction, as provided in section 6334. A failure to require the oath would, however, not be the default of the person making the claim.

The special findings show that the demand was duly made of the assessor, and that the latter refused to make any deduction, not because the claim was not properly made by the plaintiff" on his assessment list, nor because of his failure tocomply with any requirement of the assessor, but because the latter denied his right, under the law, to be allowed any deduction of indebtedness from the value of his stock. The facts found make it very clear that whatever the plaintiff might have done by way of making statements, or in whatever form he might have presented his claim for deductions, it would, in any event, have been unavailing. According to the rule, where the tender of performance is a prerequisite to the establishment of a right against another, the oftvr to perform becomes unnecessary when the conduct of the other party is such as to make it reasonably certain beforehand that the offer will be refused. Hills v. Exchange Banky The City of Indianapolis v. Vajen.

105 U. S. 319; People v. Olmsted, 45 Barb. 644; Ford v. Holden, 39 N. H. 143.

The city assessor having refused to allow deductions, upon notice and demand, on the ground that no such deductions would be allowed in any case, because the law did not authorize them to be made, the city will not now be allowed to shift its position, and put its defence on the ground that the demand was not made in proper form.

The court having first reached the conclusion that, upon the facts found, the taxes were voluntarily paid, and having as its second conclusion stated that the city was, nevertheless, liable under the ruling in City of Indianapolis v. McAvoy, supra, it becomes proper first to examine the propriety of the conclusion last stated. If it be true that, whether the payment was voluntary or involuntary, the city is in either event liable to refund, it is, obviously, immaterial and unnecessary to consider the propriety of the first conclusion, which is called in question by the appellee's cross error.

It is a well established doctrine of the common law that a party who, without fraud or imposition, pays an illegal demand, having at the time knowledge of all the facts which render the demand illegal, unless payment be made upon some immediate or urgent necessity, or to release his person or property from detention, or to prevent the immediate seizure of his person or property, such payment will be deemed to have been voluntarily made. To a party who thus pays an illegal demand the common law affords no right of recovery. Jenks v. Lima Tp., 17 Ind. 326; Lima Tp. v. Jenks, 20 Ind. 301; Town of Ligonier v. Ackerman, 46 Ind. 552 (15 Am. R. 323); Board, etc., v. Armstrong, 91 Ind. 528; Board, etc., v. Ruckman, 57 Ind. 96; Lamborn v. County Comrs, 97 U. S. 181; Railroad Co. v. Commissioners, 98 U. S. 541; Union Ins. Co. v. City of Allegheny, 101 Pa. St. 250.

It should be observed, however, that the rule of the comnon law does not control in cases where a positive statute

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