Parsons v. Childs

Cole, J. The grounds relied upon in support of the demurrer to the answer are, first: That a tax cannot be levied upon an assessment not made and returned at the time the tax was voted. It appears that the election respecting the tax was ordered by the township trustees and notice thereof given on the 16th day of March, 1869; that the election was held on the 30th day of March, and on the next day the trustees made an order pursuant to the result of said election, levying a tax of two and one-half per cent upon the taxable property of the township, and ordered the clerk of the township to certify to the clerk of the board of supervisors a tax list of said tax according to the valuation of the property of the township for the year 1869; that the township assessor returned the assessment book to the township clerk on the 12th day of April, and it was delivered to the county auditor on the 18th day of May ; that the tax list was made out and certified to the clerk of the board of supervisors in September and October, and said list was then placed by him in the hands of the treasurer for collection. Under our law all property is assessed at the value and to thd owner thereof on the first day of January of the cur-rent year. Rev., § 719. The assessor enters upon his duties on the second Monday of January (section 733), and must return his assessment book to the township clerk on or before the second Monday in April (section 736). The other steps up to and including the commencement of the collection of the taxes [111] for the current year are required to be done by the first day of December. This is equally true respecting school taxes that are not voted till in March. In view of the provisions of our statute, as above mentioned, and numerous others, it is very manifest that the tax voted and sought to be enjoined in this case was regularly and legally to be levied upon the assessment of 1869, the year in which it was voted. a_right to receive tax. Second. That a township tax cannot be collected and paid over to a railroad company which has sold its road. The defendant, by its answer, avers that it did, upon tpg 0f said tax, in the year 1869, construct, complete and put in operation the railroad through said township, and that the same has been ever since and is now in operation; that since the tax became due to the defendant it has sold said railroad to another railroad company, which still owns and operates it. The statement as above propounded by the appellee’s counsel arises upon the demurrer to this answer. In view of these averments we answer that in such case the tax can be collected. When the company to which a tax has been voted, has, upon the faith of the tax, constructed the road and put it in operation, such company becomes entitled to the tax, and this right is not forfeited by the subsequent alienation of the railroad to another company. This ought to be so, especially where the township is enjoying, as appears from the averments in this case, all the benefits which could have resulted to it if there had been no alienation. Since we are led to affirm the right of defendant upon the two propositions, as above stated, it becomes unnecessary to inquire whether the former adjudication constitutes a bar to this action. Whether it does or not, this judgment must be Reversed.