Musselman v. City of Logansport

Frazer, J. This was a suit to restrain by injunction the collection of taxes. A demurrer was sustained below to [534] each, of three paragraphs of the complaint, and the questions thus decided are before us. 1. The first paragraph of the complaint, shortly stated, was as follows: That the appellant, on the 1st of January, 1863, by a sworn statement in writing, made to the city assessor, and by him received without question, stated the aggregate of his personal estate subject to city taxation to be $5,575; that on the 2d of June, 1863, the common council, without notice to the plaintiff, without his knowledge or consent, and without proof or authority of law, increased his assessment to $10,000, upon the basis of which city taxes for that year were computed and charged against him, thus making an increase in his taxes of $22 12, which he has not paid; that he has paid the residue; that the city is about to collect, &c. There is no averment in the paragraph that the personal estate of the plaintiff", liable to taxation by the city of Logansport, was of less value than $10,000; none that his own sworn list was correct; nothing from which the conclusion can be drawn that the increased assessment was not entirely proper and correct. It is only claimed that the plaintiff" was not notified of the increase, did not .consent to it, and that there was no proof before the council. In a word, the plaintiff" sedks to evoke the extraordinary process of injunction from a court of equity to protect him from the payment of a trifling tax, which, according to his own showing, it does not appear but that he ought, in justice and conscience, to pay. He asserts no substantial equity whatever as the basis of his application. It would be an abuse of the writ of injunction to grant it in such a case. We so held in Jones v. Summer, 27 Ind. 510, after very careful consideration. We are of opinion that the demurrer to the first paragraph was properly sustained. 2. The second and third paragraphs of the complaint are substantially alike. They seek to restrain the collection of taxes levied in 1866, by the city, upon the plaintiff’s real .estate, on account of supposed irregularities, in its appraise [535] ment in several particulars: 1. Upon the ground that the levy was upon an appraisement of real estate by the city assessor made in 1866, whereas, it is insisted, the appraisement of real estate made for general purposes of taxation in 1864-65 should have been taken as the basis of the city levy for the next ensuing five years. 2. That the assessor did not return his lists until the 6th of June, the law requiring this to be done on the first Monday (fourth day) of. that month. 3. That upon such return by the assessor, on the second of Jidy, an assistant was appointed by the council, who, with the assessor, revised the whole list, increasing the plaintiif’s from §39,000 to §80,000, there having been no order prior to July 2, by the council, extending the time for completing the work of the assessor. Some exhibits are annexed to these paragraphs, and made parts thereof, by which it also appears that on the 27th of June the assessor was directed by the council, in connection with a committee of councilmen, to revise the assessor’s appraisement of real estate, and on the 2d of July it appears that, the assessor asked further time to complete his assessment, whereupon it was resolved by the council that he be granted until Jity 18th, and William Ghenny was, at the same time, on request of the assessor, appointed “as assessor for the assessment of real estate,” and on the 18th of July “the assessoj was given further time to complete his appraisement of real estate. On the 25th of July, “the corrected assessment of the assessor and assistant assessor was received” by the council, and a time fixed for the meeting of the boarl of equalization, which met accordingly, and acted. The appellte insists that the 95th section of the recent act (Laws 18(7, p. 76) legalizes and makes valid this tax, notwithstanding any irregularities. If this proposition is correct, it will L needless to determine whether or not the proceedings werego irregular as to give the tax payer a remedy by injunclpn. The statute referred to is as follows.“All levies of taxe heretofore made by any incorporated [536] city in this State, whether the assessments have’ been made by the city assessor, or copied from the assessments for state and county revenue, be and the same are hereby legalized.” jD. D. Dykeman and W. Z. Stuart, for appellant. D. I). Pratt, for appellee. This language is comprehensive enough to include the assessment under consideration, and no reason is perceived why it is not within its spirit. Indeed, the appellant’s counsel have not chosen to consider, in argument, the effect of this statute. Such statutes sometimes operate harshly, and ordinarily their scope should not be extended by construction. Nevertheless, the subject is within the limit of the law-making power, and. it is not the province of the courts to interpose obstacles to the execution of the legislative will, when clearly expressed. This view of the subject renders it unnecessary for us to express an opinion upon some questions carefully argued on behalf of the appellant. The judgment is affirmed, with costs. «