The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-05-30
MUST NOT TAX POLICIES
JUDGE ALIENS INJUNCTION AGAINST
THE TAX COMMISSIONERS.
Victory for the Insured in Lower
Court-State Board Has No Leg
isIative Authority.

icies is granted as asked for by the plain
tiffs.
The courts decision was given at clock
yesterday morning large number of law
yers and insurance men being present 10
hear the opinion. The writ of injunction
issued yesterday afternoon requires the
state tax board to strike out all the insur-
ance questions that have appeared in the
tax schedule and to rescind all instructions
sent out to tax officers over the State. The
attorneys for the State expect to carry the
case to the Supreme Court and fight it out
there. Following is the full text of the
courts opinion:
THE plaintiffs bring this action on be-
haIf OF Themselves and divers other ctti-
zens of the State and especially Of Marion
county. and they seek to have this court
enJoln the Defendants from doing the acts
complained of. 1t names the several de-
PENDANTS constituting the State Board of
Tax Commissioners, county auditor. cOun-
~ assessor and the several township as
SCISSORS of Marion county 1t sets forth the
respective duties of such officers and al
leges that the plaintiffs each respectively
hold a policy of life insurance in the New
York Life Insurance Company The COM
plant then sets forth the nature of the
company, and the character of the several
policies of insurance issued by the COM
pany. That said New York Life Insurance
Company is q purely mutual life insurance
company, composed wholly of persons in
Sured therein. 1t sets forth certain duties
prescribed by law, to be performed by the
several defendants. relating to the assess
ment of taxes, and it is charged that the
State Board of Tax Commissioners have
caused to be printed in the tax assessment
list to be used by the township assessors
in the several townships of this State under
the schedule list known as credits Item
seven o., eight 80, to be answered by
the taxpayers who hold life insurance poll
cies, which are follows:
q" Seven 90, number of paid-up life insur-
ance policies and. their value
Eight 50, number of nonforfeitable and
partly paid-up life insurance policies and
their value and it is charged that said
Board of Tax Commissioners threatened
and intend to instruct and cause said local
tax officers assessors, etc, to list all
pa1d-up life Insurance policies and all non
forfeitable and partly paid-up life inSur-
ance policies, for the purpose of taxation
and to cause all persons who shall refuse
to return such policies for taxation to be
prosecuted on account of refusal to answer
such questions and charges numerous other
acts which said officers are threatening and
about to do to enforce the effort to assess
and collect taxes on such policies of insur-
ance, and this court is asked to enjoin said
defendants as such officers from doing the
several acts complained of for the reason
alleged that such policies of insurance are
not by law made the subject of taxation
full.
''If such life insurance policies under ex-
listing laws are subject to taxation this
suit must fail. 1t is equally clear that if
such life insurance policies under existing
laws, are not subject to taxation, the
plaintiffs are entitled to the relief asked
and the duty of this court to grant the re-
lief is imperative.
1T is not the duty of a busy nisi prius
court to discuss authorities or write opin-
ions, but this case involves questions so
novel, and SO important that l feel it is
proper that / should refer briefly to some
general principles, which in my judgment
should control in deciding this case The
fundamental principles of government are
directly involved. The functions of govern
ment and the construction Of the COnstitu-
ton as to the divisions of those functions
and the rights powers and duties devolved
upon each of the several departments of
government and the relation of one of such
departments to the other, as well as the
construction of the statutes themselves
must all be considered. 1t is the theory of
our government that the people are the
source of all government. BY the Constitu-
ton the people exercise their power
through the agencies provided by them in
the Constitution. These agencies are di-
vded into three separate and distinct de-
partments commonly known as the legisla-
1--WE, the executive and the judicial
THE LEGISLATURE'S DUTY.
BY the terms of the Constitution, the
respective functions of government are del
egated to each of these several depart
ments, and it is provided that neither of
these several departments, except as there
in expressly authorized shall delegate any
of its functions or power to any other de-
partment; and in its department each is
supreme, except as provided by the Consti-
tuition itself The Legislature is the law
making power, and to that body belongs all
the taxing power, restricted only by the
limitations contained in the Constitution.
The defendants, each of them, are part of
the executive and administrative depart
ment OF the State government and as such
certain laws of taxation 1t is the duty of
the court to ascertain, interpret and con-
strue the laws, and apply them to the facts
of the case brought before them and pro-
nounce judgment accordingly. Much
has been said by counsel on both
s 3, about the policy and expe-
ance policies, but such considerations are
not to be entertained by the court. It has
neither the power to decide nor the right
TO consider in this inquiry whether public
interest would be subserVed by taxing life
insurance policies.>
'The question before the court is not
whether such life insurance policies should
be taxed, but whether they have been
taxed l think it must be conceded that if
such tax has been levied we must find au-
thority for it in some act of the Legisla-
ture, the only branch of the state govern
ment which has power vested in it to levy a
tax. think it is clear that there is no power
given the Board of Tax Commissioners
to determine what shall be taxed, they have
no power to select the subjects of taxation.
The will of the Legislature is supreme upon
this subject except as expressly limited
by the Constitutions If insurance policies
prior to the action of the defendants then
no act of any of the defendants can render
them subject to such taxes. They belong
to the executive branch of the state gov
eminent. Their duties are administrative,
and require that they carry into effect the
will of the Legislature. 1t is not a subject
of inquiry by them in the performance of
their duties as to what the public good re-
Quires should be taxed 1t is their duty,
not to make laws, but to see that the tax
laws are enforced.
Property may escape taxation which is
taxable by their failure to do their whole
duty but by no act of theirs can any prop
erty become the subject of taxation which
is not made taxable by law. The power of
taxation is a sovereign power exercised in
this country through the legislative depart
ment and taxes can only be collected when
the property has been assessed, and the
taxes levied in the mode prescribed by law.
State VS.. Ilyes. 81 md 405; Pfaff VS.. r. r.
Co. los Ind. 144 l am of the opinion that
to the State Board of Tax Commissioners
any of its legislative power, and that if it
had so attempted it could not do so.
A COLLECTING DEPARTMENT
1.-THE purpose and wisdom of the three
great divisions of the functions of gov
eminent provided by our Constitution can
find no better illustration than the present
case, wherein it gives the power of taxa
ton to the Legislature, and places the col
lection of such taxes in an entirely sepa-
rate department. If the board whose duty
ii is to enforce the collection of taxes could
be and were given the power to select the
subjects and fix the rate of taxation, it