Board of Commissioners v. McCarty

Ray, J. At the June term, 1865, of the Board of Commissioners of Harrison county, it was ordered “that a tax of one dollar and forty-five cents he levied on each one hundred dollars worth of taxable property in said county, and three dollars and fifty cents on every poll liable to taxation, for the year 1865. The appellee, who is a resident taxpayer of the county, filed his complaint to enjoin the collection of this tax, and to restrain the county treasurer from paying certain, sums appropriated, on the ground that the commissioners had, on the 9th day of February, 1865, passed an order appropriating out of the county treasury the sum of |61,200, for the purpose of filling the quota of said county, under the call of the President of the United States for volunteers, of December 19,1864, and for the repayment of money advanced by citizens of the several townships to procure volunteers. And on the further ground, that on the 3d day of December, 1865, the said board of commissioners had ordered the sum of f300 to be paid but of the above appropriation to each of such persons as had furnished substitutes under the said call, prior to the 9th day of February, 1865. In Coffman v. Keightley, 24 Ind. 509, and in The Board [476] of Commissioners of Miami County v. Bearss, 25 id. 110, we held that appropriations to reimburse private citizens for voluntary contributions, made previous to the appropriations, for the purpose of inducing volunteering, and appropriations to reimburse persons for money expended to- obtain subtitules, were both illegal. It would therefore be proper for tbo court to restrain the treasurer of the county from paying out the sums appropriated for these objects. But the levy of taxes, the collection of which is sought to be enjoined in the complaint, is for general county purposes, aud that levy the hoard of commissioners had the power to make, and the officers cannot, therefore, he restrained from collecting it. The court can simply prevent its misapplication when collected. Had the board of commissioners made a special levy for the illegal purpose, the collection of that tax could properly have been enjoined, but the averment th at the board intend to mi sapply a part of a tax legally assessed, will not authorize the court to restrain the collection of the legal tax. A demurrer was filed to this complaint, which was overruled by the court. As the relief asked against the county treasurer, so far as it demanded that he be restrained from paying the money from the county treasury to those persons who had made voluntary contributions, or had paid money to procure substitutes, was within the power of the court to grant, no error wras committed in overruling the demurrer. A second paragraph was subsequently filed to the complaint, in aaTúcIi it Avas alleged that the tax duplicate was defective; that it Avas not placed by the auditor in the hands of the treasurer on or before the 15th day of October, 1865, nor Avas it then made out, nor added up, nor was there set doAvn on each page thereof the several columns, containing the valuations of real and personal estate, the taxes charged and the number of acres, carrying the same forward from page to page to the close of each township, nor Avere the several towships recapitulated at the end of the duplicate, nor Avas the aggregate of the items added up for the entire county, wherefore [477] it was alleged the duplicate was void. A demurrer was overruled to this paragraph. G. L. Dunham and S. K. Wolf for appellant. J. M. Butler and W. Q. Gresham, for appellee. The omissions complained of are not such .as, in our opinion, render the tax duplicate void. If the property of the appellee was properly listed, it is not a matter of importance to him that the amounts were not properly footed up at the close of each page and carried forward. The statute provides for the amendment of the duplicate by the auditor, and of the copy held by the treasurer, and the omissions alleged are simply clerical. The demurrer to this paragraph should have been sustained. The judgment is reversed, with costs, and the cause remanded for further proceedings.