Risley v. Rumble

Dausman, J. There is nothing to be gained by an extended discussion of the various questions raised by the first assignment of error. It is sufficient to say that, in attacking the complaint by a motion to make more specific, the defendants misconceived their remedy. (See §385 Burns 1914, §376 R. S. 1881.) The appropriate method of attack was by motion to strike out. §391 Burns 1914, §382 R. S. 1881; Pittsburgh, etc., R. Co. v. Nichols, Admr. (1921), 78 Ind. App. 361. It is only fair to say that counsel for the defendants were misled by the unintelligible language of §343a Burns’ Supp. 1921, Acts 1915 p. 123; Outing Kumfy-Kab Co. v. Ivey (1919), 74 Ind. App. 286; Central Bank, etc., v. Martin (1918), 70 Ind. App. 387. In passing upon the sufficiency of each paragraph of complaint, we are required first to determine what averments are legitimate. It is elementary that the function of a pleading is to state facts; and that for the purposes of the demurrer, only such facts as are well pleaded are assumed to be true. [579] The complaint is exceedingly verbose. Many of the averments in the same paragraph of the complaint are [580] flatly contradictory. The following statement of some of the matter eliminated will indicate the difficulty which must be encountered when attempting to determine the sufficiency of either paragraph: (1) All averments and references relating to “persons similarly situated.” If other perrons own lands which have been assessed on the same plan, and if those other persons are aggrieved thereby, their interests are several and not joint. Jones, Treasurer, v. Rushville Nat. Bank (1894), 138 Ind. 87. (2) All averments concerning the assessment of the plaintiff’s personal property. (3) All averments to the effect that the additional value fixed by the state board is, in truth, an assessment on the income derived from the production of oil, or on the oil in, or supposed to be in, the land, or on personal property. It is plainly averred that the state board made an assessment in certain words and figures. Those words and figures are set out in full and speak for themselves. The averments concerning the effect of that assessment constitute an argumentative attempt to contradict the plain meaning of those words and figures. Furthermore, in several other averments, the plaintiff clearly treats the assessment as an increased value of the real estate. (4) The averment that the auditor placed the assessment against the plaintiff’s real estate without any lawful notice to him is a proposition of law. (5) The averment that an additional assessment on real estate cannot be made without specifically designating and describing the real estate is a proposition of law. Having eliminated the averments which are not legitimately pleaded, the first paragraph still remains indefinite and perplexing. As nearly as we are able to ascertain his position, the plaintiff seeks to sustain his complaint on three propositions : (1) that the assessment by the state board is too indefinite because it does [581] not specifically describe the land on which the increased value is placed; (2) that the fact that plaintiff’s land' is producing oil does not justify a valuation above what would be its value if it were not oil-producing land; and (3) that the additional value has not been properly entered on the tax duplicate. It appears, expressly and. inferentially, that as the result of the hearing before the state board, at which hearing the plaintiff was present in person, and in which he participated, the board decided that a certain sum should be added to the value of the plaintiff’s land which is leased to oil companies, but did not specifically describe the land which is so leased; that the state board merely designated the land affected by the words “lands leased to oil companies”; that the gross amount of increase in value was certified to the county auditor; that the auditor placed the additional value on the plaintiff’s real estate; and that, in so doing, the auditor arbitrarily designated the land and increased the assessment thereof. Now, what does the court know about it? In what particular is the action of the auditor arbitrary? How has the plaintiff been injured? By what specific act has he been aggrieved? The general rule that whatever lies beneath the surface of a tract of land belongs to the owner of the surface is so familiar that it should be unnecessary to cite authority to sustain it. Knight v. Indiana Coal, etc., Co. (1874), 47 Ind. 105, 17 Am. Rep. 692. The fact that there are oil-producing wells on the plaintiff’s land is a legitimate element to be considered in fixing the value of the land. But what is the effect of the averment that “the nature of gas and oil is fleeting”? Does the plaintiff mean that the supply of oil may become exhausted and the wells cease to be productive? If so, that feature may well be left [582] for future consideration. When the wells become nonproductive, perhaps the plaintiff may then find a way to have his assessment reduced. It is averred that although the additional value was certified to the county auditor, that officer “did not make an additional assessment on the lands of the plaintiff”, but that “said assessment was placed by the auditor at the end of the tax duplicate for Madison Township.” Do these averments show that the plaintiff is about to suffer irreparable injury? How does it concern him whether the entry has been put at the beginning or at the end of the tax duplicate? How would he be injured if the entry had been made in the middle of the duplicate? Is not that merely a matter for the convenience of the officers? In taxation by special assessment (as in the improvement of a street by paving) the proceeding is in rem. The tax is levied on a particular tract of land which is specifically described. If the owner of the land .neglects or refuses to pay the tax, then it must be realized from the land or not at all; for there is no personal liability against the owner. In taxation by general assessment, the plan is entirely different. A general tax (such a tax as is levied pursuant to our general tax law for state, county, township, school, or other purposes) is not apportioned and distributed to the various tracts of land owned by the citizen. Where the citizen’s land consists of various tracts, each tract is liable for the total tax for the payment of which the owner is obligated, even including the tax computed on his personal property. Indeed, the duty to pay the tax is an obligation imposed upon the citizen by law, and, in this jurisdiction, that obligation may be enforced by an action in personam instituted in the name of the State. It is true that in the process of listing and valuing the land owned by the plaintiff, a description [583] thereof was required to be entered in the record of the township assessor (§10139j5 et seq. Burns’ Supp. 1921, Acts 1920 [Spec. Sess.] p. 193); but that is a preliminary proceeding for the purpose of enabling the officers to determine the quantity and value of his real estate. The ultimate purpose of that process is to determine the total value of all his land. Prudential Casualty Co. v. State (1924), 194 Ind. 542, 143 N. E. 631. The presumption is that, at the time of the hearing, the state board had before it a description of the plaintiff’s lands. While the action of the state board is rather awkwardly expressed, the only legitimate interpretation of its order is that it thereby increased the total value of the plaintiff’s lands on account of the oil-producing feature to the extent of $2,810. Thereupon it became the duty of the county auditor to enter the additional value on the tax duplicate. §10139b8 Burns’ Supp. 1921, Acs 1919 p. 198. Now, is it essential that the additional value shall be entered on the duplicate in any particular manner? The legislature has directed how the tax roll or tax duplicate shall be prepared as to form and substance. §10139x7 Burns’ Supp. 1921, Acts 1919 p. 198. Among other things, it is provided that the auditor shall enter in separate columns: “All lands and lots in each civil township, with the names of the owners in alphabetical order, the value of the lands or lots without improvements, and opposite this the value of the improvements thereon.” Suppose that, when preparing the duplicate, the audi- ■ tor had inadvertently omitted the plaintiff’s name and property and failed to discover the omission until all other names had been entered; then, being unable to enter his name in its alphabetical order because no space had been reserved for that purpose, he had made the entry out of its alphabetical order. Would that render [584] the tax unlawful? Would that relieve the plaintiff of his obligation to pay the tax? Would that justify a court in perpetually enjoining the collection of the tax? These questions must be answered in the negative. There is a general rule founded on sound reason and principle which requires that when construing a tax law all those provisions which are intended to secure methodical procedure shall be regarded as merely directory, and that only those provisions which are necessary to the protection of the citizen shall be regarded as mandatory. Sutherland, Statutory Construction §455; Sibley v. Smith (1853), 2 Mich. 487; Clark v. Crane (1858), 5 Mich. 151, 71 Am. Dec. 776; Torrey v. Millbury (1838), 21 Pick. (Mass.) 64; Millikan v. Crail (1912), 177 Ind. 426. That rule is applicable even in the law of taxation by special assessment. That is to say, a literal compliance with those directions which are not essential to the protection of the citizen is not essential to the validity of the tax. That is true even though the officer may be penalized for his failure to obey the statutory directions. The evident purpose of the provisions of the statute relating to the manner of preparing the tax duplicate is to prescribe a convenient method of bookkeeping which shall be uniform throughout the state. It is not essential to the protection of the citizen that those directions shall be literally obeyed; for the citizen may be abundantly protected in any controversy concerning his liability by reference to the original assessment sheet and other official records. Any failure, therefore, to enter the plaintiff’s name and a description of his land in such a manner as to constitute a literal compliance with the statutory directions, if there has been such a failure, will not relieve him from his obligation to pay the tax, the collection of which he seeks to enjoin. The fact should not be overlooked that the auditor is [585] expressly authorized to correct the tax duplicate at any time (§10139b8 Burns’ Supp. 1921, supra); and for that purpose he may obtain a description of the. land leased to oil companies from the lease itself (if it be recorded) or from the second paragraph of the complaint herein. §10139p1 Burns’ Supp. 1921, Acts 1919 p. 198. As to what will constitute a sufficient description of real estate for the purposes of taxation, see §§10139j5, 10139l5, 10139p1 Burns’ Supp. 1921, Acts 1919 p. 198. In the second paragraph of the complaint the plaintiff has described his oil-producing land in three tracts and has averred that “the Murphy Oil Co. is the owner and holder of a leasehold thereon and is the owner of the oil wells.” But, from all the averments, it cannot be inferred that he has conveyed to the oil company the title to the oil under the surface or that there has been a severance of the estate for the purpose of ownership. On the contrary, the averments plainly show that he has given to the oil company what is commonly known as an “oil lease” in consideration of a share of the product. Neither paragraph states facts sufficient to constitute a cause of action. Judgment reversed, and the trial court is directed to sustain the demurrer to each paragraph of the complaint. , . McMahan, J., dissents.