First National Bank v. Greger

Monks, J.

It appears from tbe record that tbe valuation of appellant’s capital stock and property was entered on the tax duplicate of Jackson county for 1899 at $143,110, tbe amount to which tbe same was increased by tbe county ' board of review and tbe taxes extended thereon at the rate of $1.68 on each $100 of said valuation; that appellant paid its taxes at that rate on $133,110, and brought this action to enjoin tbe remainder of the taxes charged on said duplicate, claiming that the State Board of Tax Commissioners had on appeal assessed said capital stock and property at $133,110 for the year 1899. A demurrer for want of facts *480 was sustained to the complaint, and this ruling is assigned for error.

If it is shown by the complaint that the State Board of Tax Commissioners assessed said property on appeal at $133,110 the court erred in sustaining the demurrer, and the judgment must be reversed, otherwise it must be affirmed. The part of the complaint essential to the determination of this question is as follows: “On the 19th day of August said State Board of Tax Commissioners, having duly obtained jurisdiction of said matter, duly granted plaintiffs said appeal, and finally assessed plaintiff, its. capital stock and property for the year 1899 at the aggregate sum of $133,110, but that the minutes of the action of said board were indefinite and uncertain, and the same were, on the 2nd day of January, 1901, by said board made more certain and definite, a copy of which corrected minutes is filed herewith and made a part hereof marked exhibit A.” As the action was not founded upon the minutes made at the special session of the board in January, 1901, the same can not be considered in determining the sufficiency of the complaint, although filed as an exhibit. Gum-Elastic, etc., Co. v. Mexico Pub. Co., 140 Ind. 158 , and cases cited, 30 L. R. A. 700.

There is a direct averment that on appeal the. State Board of Tax Commissioners assessed appellant’s capital stock and other property at $133,110, and there are no facts averred in the complaint which contradict or overthrow said allegation. No' question concerning the sufficiency of the record of the action of the board, at its regular session, to establish the allegations in the complaint, or the admissibility thereof in evidence, is presented by the demurrer to the complaint. Neither is any question presented as to the power of said board to make the nunc pro tunc entry at its special session in January, 1901.

A constitutional question is discussed in the briefs, but it is well settled that the same will not be considered when *481 the ease can be decided without passing upon that question. Martin v. State, 143 Ind. 545, 549 ; Pennsylvania Co. v. Ebaugh, 144 Ind. 687, 694 . It follows that the court erred in sustaining the demurrer to the complaint.

Judgment reversed, with instructions to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.