Satterwhite v. State

142 Ind. 1

• Court: Indiana Supreme Court
• Decided: June 14, 1895
• Docket: No. 15,997
• Status: Published

Opinions

Howard, J.

Erom the affidavit and information filed in .the court below, it appears that on the 15th day of September, 1890, the Morgan county board of equalization was in session in Martinsville, in said county, investigating according to law, and inquiring into the alleged fact, that divers tax-payers of said county, on the first day of April, 1890, had on deposit in the First National Bank of said city, large sums of money, then and there liable to taxation in said county for said year, which said tax-payers had omitted to report to the assessors, and that the same had not been assessed or taken into account in the assessments made for that year; that said board was, at the same time engaged in making investigation, as to persons who had converted their money into “greenbacks,” for the fraudulent purpose of avoiding taxation thereon; that while in session, as aforesaid, said board subpoenaed appellant, who is the president of said bank, to appear before the board, and ‘bring with him the book of deposits belonging to said bank, and to testify as to matters relating to such investigations ; that in obedience to said subpoena appellant did appear before the board with the book of deposits, whereupon the board, for the purpose of aiding it in its said investigations, and not otherwise, demanded that it be permitted to examine said book of deposits ; that appellant refused to permit an inspection of said book of deposits by the board, and refused to testify as to the matters aforesaid; — asking that a mandate issue from the court to require appellant to show cause, if any he has, why he refuses to allow the board to inspect said book of deposits, for the purpose aforesaid, or to answer the questions propounded to him, and that upon the findl hearing he be ordered to do so.

A demurrer having been overruled to the complaint, the court entered an order requiring appellant to appear "before the board of equalization, and £ £ answer as to such questions as may be propounded to him by said board, touching or relating to the said investigation, as to any person or corporation of said county, named or mentioned by said board, who had money or bonds on deposit, or in the custody or control of the First National 33ank of Martinsville, Indiana, on the first day of April, 1890, and also that he answer such questions of said "board as may be propounded to him as to persons or corporations of said county, who within his knowledge, before the first day of April, converted, or caused to be -converted, his or her taxable money into United States notes, called greenbacks, or into other non-taxable securities of the United States, and further, that he permit the said board to inspect and examine the books of the said bank, in his custody and control, in order to ascertain if any person or corporation of said county, that may be mentioned by it, had money, notes or bonds deposited therein on the said first day of April, 1890. All -of which is ordered and commanded by the court, in order that the said board may discharge its duties in the premises, in investigating as to what property, if any,' "belonging to persons and corporations of said county, and owned and held by them on said first day of April, has been omitted from being assessed and returned for taxation for the year 1890. George W. Grubbs, judge.”

In compliance with the order so made, the appellant appeared again before the board of equalization; but, as appears further from the information, he refused to answer the questions as directed in said order, and refused to permit the hoard to examiné said books of the First National Bank, or to inform the hoard as to the deposits in said bank, or as to who had changed their deposits into greenbacks to escape taxation, and x’efused “to answer or show to said hoard from the hooks of' said bank, the amount of deposits of Willard Parks, and. about twenty-five others, or if they had changed their deposits into greenbacks on or about the first day of April, 1890.”

On the filing of the affidavit and information, a rule was entered against appellant requiring him to show cause why he should not be punished as for contempt for his refusal to obey the order of the court as heretofore made.

The appellant appeared and demurred to the rule, to-show cause ; and on the overruling of his demurrer, answered : first, by a general denial, and, secondly, by a special paragraph.

In the second paragraph of his answer, the appellant averred that he was not, as he believed, guilty of any contempt of court; that he did not attempt in any way to avoid any proper examination of himself as a witness, before the board of equalization; that he did decline and refuse to disclose the names of persons who had deposits of money in said bank on the first day of April, 1890, or to permit said board to examine said hooks of said hank, ‘ ‘ unless said hoax’d would first, by notice to particular persons, as required by the statutes in such cases, begin such proceedings as would give to said board the right and power to equalize, tax and charge with onxitted property or money, or incx’ease the value thereof, against the persons thus notified; that he so x’efused be-caused he was advised, and in good faith believed, and yet believes that such steps were necessary to he taken before said hoard had any jurisdiction of such persons, or had the power to investigate said matters, and because as to said books of said bank, he had no right, and could not consistently with his duties as an officer of said bank, make such use of said books, or such exposure of its business transactions with, such persons, until all preliminary steps made necessary by the statutes governing the matter had been complied with; that if said board shall, by proper notice, begin such proceedings against ■any person depositing or exchanging taxable for nontaxable paper or money to evade taxation in or with ;said bank, so as to give said board jurisdiction over such person, and thereby acquire the right to proceed against ■any such person, defendant will, if required, disclose as to such person all information in his possession, and any facts appearing on the books of said bank as to such person and his transactions with said bank, but his duty to said bank, and the interest of said bank forbid that he should do so under any other condition or circumstances.”

A demurrer being sustained to this second paragraph of answer, the cause was submitted to the court upon the •complaint and the general denial, and a plea of not guilty by the appellant; and the evidence being heard, the appellant was found guilty of contempt of the court in refusing to obey the order thereof, and was fined in the sum of one dollar. Over a motion for a new trial, judgment was entered accordingly.

• It is first contended by appellant that the board had not jurisdiction of the matters of which it made inquiry •of him; and that there was therefore no contempt of •court in refusing to obey its order, requiring him to answer the questions as set out in its order.

The information upon which the order and rule of court were based, showed that the board was at the time in session investigating and inquiring into the alleged. fact that divers tax-payers of the county had on. the first day of April previous, on deposit in the hank in. question, large sums of money liable to taxation for that year, which had not been reported to the assessors, and had not been listed for taxation.

Among the powers of the board of equalization, given, by section 6397, R. S. 1881, as amended by an act approved March 9, 1889, (Acts 1889, p. 367; Ell. Supp., section 2127), were the foilwing: “Power to hear complaints of any owner of personal property, except capital stock, franchises and rolling stock of railroads, to> equalize the valuation of property and taxables made subsequent to the preceding first day of April, and to correct any list or valuation as they may deem proper;” also, “power to equalize the valuation made by the assessors, either by adding to or deducting from their valuations, such sums as to said board or a majority thereof, shall appear just and equitable;” and also “power to add and assess omitted property,” notice to the owner to be> given, as prescribed in the last case. Finally, as held in State v. Wood, 110 Ind. 82, to aid the board in the discharge of all these duties, it is further provided that they ‘ may send for persons and papers. ”

As a further aid to the board in the exercise of the powers enumerated above, and particularly in their making the preliminary investigation and inquiry referred to in the information filed with the court, it was provided in section 6317, R. S. 1881, then also in force, that: “For the purpose of properly listing and assessing property for taxation, and equalizing and collecting taxes, county auditors, auditor of State, and boards of equalization, shall each have the right to inspect and. examine the records of all public offices, and the books and papers of all corporations and tax-payers in this State, without charge; and they shall also have power to administer all necessary oaths or affirmations in the discharge of their duties. ”

It is not easy to see how the statute could have more fully conferred upon the board the power to do what it was attempting to do in this case. “Having these powers,” as said in State v. Wood, supra, “it is clearly the duty of the board to exercise them in proper cases.”

It is also well said in that case: ‘ ‘ The power to add and assess omitted property, in many cases, would amount to but little, if the board had no power to investigate and determine whether or not property had been so omitted. ” And again: The power to add and assess omitted property carries with it the power to investigate and determine as to whom the property belongs, and whether or not it has, in fact, been omitted from the tax list's of the owner. And the power to make such investigation includes the power to get information from the supposed owner and other witnesses. See Bishop Statutory Crimes, section 137.”

Indeed, the case of State v. Wood, supra, substantially decides the chief, if not the sole, controversy in this case, namely: That the board of equalization had the power to investigate and determine whether or not .Willard Parks, or any one of the other twenty-five taxpayers, was the owner of money, notes or bonds on deposit in said bank, which he had not included in his tax lists, and which was, therefore omitted property, and that, in order to make the investigation, it had the power to examine witnesses ; and further, that, having such power, it was in the exercise of a duty.”

There is nothing in the contention of counsel, made in súpport of appellant’s excuse in his second paragraph of answer to the rule to show cause, namely, that no notice had been issued to any tax-payer that the board was about to assess property omitted by him.’ The board was not at the time attempting to assess any such omitted property, as the information shows, hut was making a preliminary examination under the statute to determine whether any property was omitted.

Counsel for appellee well remark in this connection, that:

‘ ‘ The board in this case was duly organized, it had the right and power to make a preliminary investigation, to ascertain for its own information, as a basis for further proceedings, if necessary, whether any tax-payer of the county had omitted or concealed property that was subject to taxation, and, in the exercise of this duty, to swear and examine witnesses; and then, if upon this investigation, it should be determined to proceed further, to give the required notice, and let the individual tax-payer come before the board and°be heard in his own defense or explanation. Any other construction of these statutes would be strained and narrow, and defeat both the letter and the spirit of the law.”

It is said that the board was not a court, and could not, therefore, punish for contempt. That was evidently the opinion of the board itself when the information was filed in the circuit court. The court issued its mandate to require the appellant to comply with the provisions of the law, and on his default herein, issued a rule against him to show cause why he should not be punished as for contempt, in refusing to obey the mandate of the court.

The board had authority to make the investigation. It had authority by any member of it to administer the oath to the witness, and it had authority to require him to be sworn and answer as to the matters inquired of him.

“Where the statute,” says Mr. Bishop, supra, “gave the king’s justices power ‘to take the oaths’ of persons, it carried with it, by intendment, authority to issue their precept, and bring the persons before them to be sworn.” State v. Wood, supra.

Whether the circuit court had power to require the appellant “to answer generally” the questions propounded by the board, we need not inquire. The very conservative order of the court required only that appellant answer, “as to any person or corporation of said county, named or mentioned by said board;” and that “he permit the said board to inspect and examine the books of the said bank in his said custody and control, in order to ascertain if any person or corporation of said county, that may be mentioned by it, had money, notes, or bonds deposited therein on the said first day of April, 1890.”

ISTor was this “a public examination,” “dragnet,” or “prying into the private business” of any one, any more than is any legal listing and assessment of taxes. Such inquiries are always proper on the part of assessing officers, and sometimes necessary, in order to learn what property should be placed upon the tax lists. The inquiries are moreover directly authorized by the statute.

The examination, as said in the order of the court, was to be made solely in order that the board might “discharge its duties in the premises, investigating as to what property, if any, belonging to persons and corporations of said county, owned and held by them on said first day of April, had been omitted from being assessed and returned for taxation for the year 1890.”

The law will not presume that the board had a right to send for the witness and ask him proper questions, and yet that he may not be compelled to answer. The court could not direct what answer he should make, but it had the power by mandate to order him to answer.

. Section 1182, R. S. 1891, (section 1168, R. S. 1881)$ provides that: “Writs of mandate may- be issued to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, or a duty resulting from an office, trust, or station.”

In the case.of Commonwealth v. Commissioners, 37 Pa. St. 277, it was said: “Miandamus is a high prerogative and remedial writ, the appropriate functions of which are the enforcement of duties to the public, by officers and others, who either neglect or refuse to perform them. It follows, therefore, that those to whom it may be appropriately directed, owe some duty to the public, and are under obligation to perform it; and for the enforcement of which there is no other specific legal remedy. ”

The appellant, indeed, did not question the power of the court to issue the order requiring him to appear again before the board and answer the questions as stated in the order, but appeared and demurred, and on the issue of the mandate obeyed it so far as appearing again before the board. The refusal to answer the questions of the board was based solely on the ground that the board had no right to ask them. In this he was mistaken, as we have seen.

The State and the public had a right to the information thus sought to be elicited, and in the manner in which it was sought, in order to secure general and uniform assessment and taxation of all property.

The judgment is affirmed.

Joed an, J., was absent during the consideration and decision of this case.

Filed May 2, 1895.