# Opposition Brief — Indiana Revenue Board v. Indiana ex rel. City of Indianapolis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0206%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1970 - **Citation:** 400 U.S. 877 ## Text JPREME COURT, U. S ° he is a . | | “INDIANA B REVENUE BOARD, ET Ab, coins a oe ‘ nie Boyt ‘s Petitioners, : t -: ; “aae f : “° _ e 2 ‘ ro . ‘ £ ) . ® ‘ INDEX i *. Page Opinions. Below -..2:) 0.0... PO aren Bi Ks es sone ccens ] Jurisdiction. Rear hee Ais SE Dee Ee oa Ne, eychertrenn (meee my 2 Questions. Pa esented Re le fa — UREN ean, 2 Siatutes and ‘Constitutional Provisions Involved: . . ys Sta tement of the Case Set ve cee PP tert Fa 3 ; Reasons lor Denying the Writ .:..... ee oe Ret 5 4 None of: the Federal Questions: Presented were : My Seasonably, MON. se tia Aa ieee See Petitioner Etherton Was Not Exensed from Obe V- ing the Mandaté ....:...°: PE Ee In es ade 13 Etherton Was Properly Substituted. ; Pp ive ees Pore « . Department af Transportation Had Iuhoritod the » | | re Vrs pe Tee Ce Eee Cee Kah een ¢ 14 Grantee! of Attorney Fees had no E fet on the - Order * kd aL Ey OPES PE ea Rene Cine me ets Repeal of the Law 'Badee Which the Auditor’s Duty Aroxe-Did not Justify her —— to Obey ".» The Mandate ....;., mean eT Rye ey eae | ~ Auditor May Not Place Her Own Interpret tation . of the (' oustitution Abov e the Court’s >.:.:.. . 20 Petitioners Were Not Proper Parties ‘to Raise the Question’ of the Attorney eae Poe Non Federal ‘Grounds Were Adetyuate at: Fed- eral Questions Were not: Substantial ......... 23 Fee or ilet ae, i pi INDEX—Continued ’ . : Page . Conclusion ........ eae Ma oe EOE PE a Appendix | "A. Acts of 193] B.» Actd of 1967, ch. 311, $4, Burns? 36-3433... ¢ > » eh. 75, § 14) Burns? -7-2414 2... C. Acts of 1925, ch. 79, $1, Burns? 61-101 22... D. Acts of 1925 ". ‘Aets of 1925 ; ais *. - CWses—continued ee: ro ne : aay Sears Ree buck & Co. r: State (1968), 248 hid. 169, 225 . ‘N.E. 2d 15 : x ~—6-16 oe ee ea a Oe Oe ee eae leb eo 6 a Rue ae Me Oe ke Smith vv. Indiana, Ind. 1903; 191 U S. ai 24 S.Ct. 51, Me Ae oe ee 22 State v, Bleeke (1917), 17 Ini. o. 23, 116-N.E.2...° 17 ‘State | Crawford, 105 So. 446, 90 I la. “64 : 17,18 State er ai Mass Transp. Auth, Wedions Rev. Ba. (1968), —— Ind. App. eae 249 N Ae. 5” 2, 19- State.ex rel, Mass. Transp. Auth, : Selias Rev, ‘Ba. (1969), —— Ind. App. ——,; IN AB, 2d 725. .9, 14, 19,: 21 » State ex rel. Mass, Trausp. Auth». Endiama Rot Ba, Bd, | ie 3978), = = Ind. App. sign 230,N 1. 2d 838 .....2°.9 State ex rel. Owens v: woth Judicial District (1931), ‘2O2%sInd, 354,174 N. E. 425 ee ea eee tee e er eeneees ) State er ae Atlantic Coast Line R. . Board ah is E ‘qualize rs, S4 Fr la. 592, 94 So. 681, re t, R. : 362.22 20 ° Tubbs v.. Linn, 70) NW. 973 .....- St DS ee ‘en VAC . Voelkel x. Berry (1966), 139 Ind. in 267, 218 NE. ih Oe a ee ee eee 13 Statutes and Constiutional Provisions Article 7, § Section 1 of the. Constitution of Indiana 28 U'S.C., Section 1257(3) lee Acts of 1965, (inde, Bess;) ), eh. 99, 6 1, Burns’ 4741 ae Acts of 1931, che 75, § 14,-Burns’ 7-2414 22.6.0... . Acts of 1969, ch, 311, © 3, Burns’ 86-3433(a) (1) *% 5 1V 5 2 : 5 Se \ AUTHORITIES CITED—Continued : f -~ I age Statutes and webs eee Provisious continued Acts of 1925\ ch. 79,1, Burns 61- Ls: ee eee aor. 3 Acts of 1925, ch. 79. = Burts’ 61-102. Rey Pere tree Acts of 1925, ch. 285 61, Burns? 61-202... Petre gets of 1969, ch. 173, $314: Burns? 48-9213 2.0.0... 14, * Acts of 1969, ch. 173, § 100, Burns* 4s- 9: 303 .. ies ee . 15 Acts of 1873, chy 43, ‘ . has amended, Burns? 3-1216 . 16 , se teeanknamens se ae . Miscvellancous —_—— ' ‘ ‘ United States Supreme Court Rules of Procedure; = No Tee Yay ss Be A ae tiene aoe oe AE: Oe he ee eh are —— Trial Rule. COA, Indi: an& Rules of Civil Procedure .... 6. | Trial Rule 19 cr ) 2% Indiana Rule s of Civil Proe edure- , 9 1 Indiana Law Eneyelopedia, Appeals, § “1,-p. 577 eee 1 Indiana Law Eneyelopedia, Appeals, 73, p. 379 ;, aa 42) Amexiean— Jurispriidence, Publie Administrative ; Law, § 68, py 380, Note 17 ..... bs sinaacks wears Pie ‘ e u& . ‘4 - ’ 4 . ’ P ° * ° be ; ‘ . s . e > * i e . ‘ g . - . \ 5 ’ ‘ ‘. ° - . . . ‘ “ ad J ‘ - “ : ° 2 . 5 pees ‘ Py : * * , F - . a 7 . ° » ; : . ’ .- ° a ° i: ’ ~ * : . . e . . . bd ; . ° . ° « * ; . * : * ce . - s “4 _ ¢ ° . . . . . . ‘ ~ > e e ‘—_ * ° , * re “- OPINIONS BELOW = - Judgment and Order of Commitment of the IN THE ~ Supreme Court of The United States : eee gee OCTOBER TERI, 1970 Je Panes: ea yee F ; - 3 | —t INDIANA REV NU E BOARD. Bh AL. ‘3 - Petitioners; eee i v. to nee : STATE OF INDIANA, -on the relation of the. City of. Indianapolis, as successor in interest to’ the Mass Transportation. Authority of Greater Indianapolis, a Municipal Corporation, and . Richard M. Givan and John F. Neff, Respondents. BRIEF IN OPPOSITION TO PETITION FOR A WRIT. OF CERTIORARI AND APPENDICES ? The Petition for- Writ of Casliorath is Reeciod to the. Appellate Court of Indiana, acting as a trial court, entered on Febru- ary. 26, 1970, as reported m - *Indiana Appellate 250 N.KE. 2d 822, ordering. Trudy Slaby Etheérton, the Auditor of the State of Indiana, committed to the Marion LP or ° A ’ ¢ » County Tndiana) daar for contempt of Court; the dis- missal of the Petition to Transfer the aforesaid , judgmie nt and order to the Indiana Supreme Court eiffered on April’ “LO, 1970; without: opinion; and the ‘di€missal ‘of : Petition’ for Rehearing to the Indiana Supreme € ourt | e@pred:, June 1, 1970, without opinion. etek “Se us | JURISDICTION pel Sins -. Thi P elitionie ' ix invoking the tastigliolion: of this ¢ ‘ourt : angler. IS USC. Sec, 1237 (3). As set forth in Rule 19 of the Supre me Court of the: United States, A rev iew on W rit of Certiorart is not a matter of right, hut of sound judicial diseretion, and will be granted only where there. 99 are spe cial and impor tant re ‘SONS therefore.’ The dee ‘Fsion of the Nppe Dake b ‘ourt of Indian: au was = based ‘ port the Court's judgment. The Petitioners have w aived any: claim Sadee the Rqual Protection ¢ ‘Jause and the Due Process ( ‘Tausejot the Foar- "teenth Amendment.’ singe it w as not se: tsonably raked, __* QUESTIONS PRESENTED” ‘1. Were the ‘Tederal Questions Presented. by the. Pati. tioners Properly or Season: vhly rakged for the Tyurpose of ‘a Writ of Cortionari?. | : : \s, Was Petitioner, Etherton in any: way excused “from abiding by the Mandate of ‘the Indiana Appellate Court? » 3.. Were all of the questions of law proper ly devided by the Indiana Supreme Court and Indiana Appellate Court, and were these either exclusively state questions or. non- substantial federal questions ? A sit ee thee ‘upon non-k ‘ederal, grounds which | _Were adequate to sup-- ‘ ti . Ce | 3 f 985 wes abt _ 4. Were the Petitioners the proper parties io raise the question of paymentof attorney’ s fees? 7 STATUTES & CONSTITUTIONAL PROVISIONS Po / | INVOLVED™ z cd . i F In. addition to: the Constitutional Provisions set out in. the Petition’ on pages 3 and 4 in addition to: the Statutes | Set out in the Petition on pages’ 4 and 5. and in the Peti- . tioners? Appendix, pages 70 to 77 the Responde ats sub- NS mit at Appe ndix A the following statutes and rules: Ache OF 190K eh, 311, $3 as amended, as densa in - Burns’ Indiana’ Statutes Annotated bea is Supp.) See-: tion 36-3433 (a) (1).. Si ey a Acts of 1965: (Spec. Sess. ), ch. 59: $1 as amended as ; found in Burns’ Indiana Statutes Annotated. (1968 * 2 Repl. ) Seetion.4- (416. | .° A | Acts of 1925, ch. 79 \ las: found } ee Burns’ Indiana Statutes Annotated (1961 Repl. ), See. 61- 101, - Acts of 1925, ch. 796 2 @found i Mm Burts? Indiana Statutes Annotated (1961 Repl.,), Section 61- 102. ‘Acts of 1925, ch. 28 1 as. found in Ruras? tadicin Statutes Annotated (1961 Repl.), Seetlom 62-202, Seventh. . ; oe, 2 a P ‘Acts of 1931, ei: 75 §14 as Amended, as found in’ Burns’ Indiana Statutes Annotated (1970 Supp. ), See- tion 7- -2414. ; STATEMENT: OF THE CASE On December 31, 1968, the Indiana Aipeilite. Court aljndged that the Governor had no power, to pocket veto cc" os ~ « ee and Subseque nt PetHtion for Rehearing were dismissed by : + : - ’ ° . a statute containing an emergency clause_providing for its | immediate taking effeet, and.it held that a 1967 Act giving ~~ — ce rtain. inheritance tax finds to-the counties had, therefore, become the Taw. a et eR, + newly elected State Auditor had taken office, and “op eral other State officials took office in January, 1969, Under the judgment the new. Anditor was mandated to pay the Counties the inheritaneé tax money due’ them. A month and a half later, the Indiana General Assembly attempted | to repeal the 1967 Act retroactively to the day of its enaet- ~ ment. Based upon the répeal, the Auditor refused to obey ° “the mandate, On petition of the Responilent, the Indiana “Appellate Court. héld that the Legislature could not repeal - ao tinals juderne nt, tnd, it ordered’ payment to be made. 6 When the Auditor still. refused to make payment, she was ~ _founel guilt¢ of. contempt and ordered to jail. The Peti- *-. tioners petitigned the Indiana Supreme. Court t6-accept _ transfer of thy contempt order. “The Pétition to “Transfer at three to one vote (one abstention ). 4 wie ms ertain errors in the 7 elitioners’ Statement: of the case ( Petition, page) to 11) should he pointed out. - The Respondents would object to this Petition’ and : ae beitwe consolidated and considered with Petition for Writ of Certiorari No, 1680 filed June 11, £970, for the reason that consolidation woald enable: the Petitione rs to bring- up questio?s in’ this proceeding which were not properly#or timely raised and-whieli would cloud the ques: | «tioy of contempt of court by the Petitioner, Trudy Slaby KEtherton. On Page 6 of the Petition it is stated that. a ail “account was ereated to hold Inheritance Taxes and im- . #» , . . . é | Pits P ; : nn ” : \ . . . 2 ” \ * - * ; e . = . ® . . * s « vf , plied. that it was, separate and pelt fr om the General Fund... That account already existed (see Appendix page A-1, Acts’ of 1931, ch. 75, 614, as found in Burns’. Ind. Stat. Anno. (1970 Supp. ), Section 7-244) and it was a ‘part. of. the General “Fund. (Appe ndix, pages «\: } to A-2 Acts of 1925, ». ¢h. 28 §1, as found in! Burns’ Ind. Stat. Anno. (1961 mer), Section 61-202, Seventh. ). aD Oe ~The paragraph beginning “on page 6 and ending on page 7 of the Petition attempts to place in question. a jrdg- me nierendered by the Indiana Appellate Court on Decem- » her 31, 1968, which has Jong since. been. affirmed by the Indi: ana Supreme. Court. It-serves merely as an attempt to ‘cloud the mail question | regarding whether Trudy Slaby Etherton was properly fomnd.. in-contempt of Court. It is not) timely’ and. should be stricken «from the Petition or \ given no conside) ‘ation, eal ie 4. The® “second paragraph of page. c of: the: Petition - Stites that the’ Appe ‘Hate Court Opinion of December ol, 1968, State ex rel. Mass, Transp, Auth, » Indiana Re& Bil. (1968), — Ind. App. —, 242 N.E. 2d 642 reversed the case of State ex rel Owens U 40th Judicial District (1931); 2a. Ind. 354, 4 N.E,, 423, dealing with the Veto power of the Governor of ‘Indiana. This is incorrect. That opinion merely limits the Governor to the veto power given hinr under the Indiana € ‘onstitution. State ex rel, Owens-r. 40th Judicial District (19! 31), 202 Ind. oo4, 174 NE. 422, simply said, if an-act which contains neither an emergency clause nor an effeetive date is not promulgated pursuant to stat- ute, it, has not become law. It did not, extend the Governor’ oo veto power. met 4, . x 3. The ‘third ‘ana fourth par sgraphs ‘of page 9 of the Petition say that on October 21, 1969, the Appellate Coyrt ba ~~ ‘ * 8 entered its first male: “This j is: incor rect. The only miaui- date ever entered in this case w as the J udgmient of Decem- ber-31,-1968. On October 21, 1969, after giving ‘the Peti; tioner's ten’ months to voluntarily comply with the mandate,. the Appellate Court entered an order giving the Petitioners a date. certain. by which to’ comply or be. found in con- tempt. of Court. “Lhe Court amended this order due ‘to Incorrect terminology, and-then on two subsequent occa- sions gave the Petitioners additional time in which to com->, yly. On each oceasion the Petitioners failed and refused to, spon with these ORGCTS. ss es The third’ and fourth paragraphs on page 10 of the: P ctitio’ should be stricken or refused cousideration, sitice the propriety of any action under Rule 70.4 of the. Indiana Rules of Civil Procedure has nev er before been raised by the Petitioners, The only purpose for its” Imsertion is’ to cloud the main issue. . . ARGUMENT REASONS FOR DENYING THE WRIT. NONE OF THE FEDERAL QUESTIONS PRE- ‘SENTED BY THE” PETITIONERS WERE PROPERLY OR. SEASONABLY RAISED FOR THE ! PURPOSE OF A WRIT OF CERTORARI The Petitioners have pointed out tht Petitioner a ton took officer on Dee mbe Je 1968, and that virious others amone-the Petitioners took af tice In January, 1969, The question of substitution was tirst raised by the Petitioners on November 20, 1969, almost . Year after: the substituted Petitioners took office, during Which time at feast sixteen pleadings of tarious/sorts had been Tiled by the attorne v for thie & etitioners, including: 1. Appellants’ Petition ‘to Transfer dated. January 10, 1969, . ~ ~ Z es Petition for choaring dated Janui AVY, ) ‘ : ~ - 7. ~~ ue Appellants’ Petition for Oral Argument dated: January 13, 1969, . 4. *Appellants’ Petition for Oral Argument dated , January 14, 1969. Appellants’ Petition for Instractions dated , Jan- uaty 14, 1969. or Auditor of the Staic of dndiana, on or before Decem- ’ ber 22, 1969, draw and issue a warrant ‘upon the General Func of the Treasury of the State of-Indiana for astm equal to ninety percent (906°) of the amount so computed and. certified and that she immediately present aid deposit said warrant with the Clerk of the. Suprenie ane Appellate Comets: — | IT IS FURTHER ORDE RED, ADIU DGKED AND — DECREED that the ¢ ‘lerk of the Supre me and Appel- . late Courts shall, upon. receipt of said warrant, dis. burse the same as follows: ie ea ‘. . ¥ Said amount so deposited with the Clerk of the Supreme and Appellate. Courts of) Indiana shall be disbursed by said Clerk to. The Mass Transportation , “Authority of Greater Indianapolis, a municipal .cor- poration, loss the amount to. be disbursed to the at- torneys of “record for. The Mass , Transportation Authority of Greater Indianapolis, a municipal cor-. poration, in satisfaction of an attorneys, lier -by said attorneys for ‘the plaintiff on February 2s, 1969. ») ra The Clerk of the Supreme and - Appellate Courts shall, upon receipt of the wararnt representing* ninety —pereent (90% ) ef the State Inheritance Taxes remitted: to the Indiana’ Department of State Revenue, Inheri- tince Tax Division, from Marion County, Indiana, which were deposited in the ‘Inheritance Tax Account’, of the State Treasury for the period January 1, 1967, throweh and including December 31, 1968, disinarse ten percent (10%) of said funds so: remitted for-the period heginhing January 1, 1967, to and including: December 31, 1967, to the ‘attorneys of record for tie Mass Transportation Authority of Greater Indianapolis, a municipal corporation, which ten percent. (10%) dis-— bursement. is in satisfaction of an attorneys’ lien, filed “by the attorneys of ‘record for the: plaintiff herein on February 28, 1969. The Order to the Clerk of the Supreme and Appellate Courts ordering him to pay attorney fees was pursuant to i 2 > . \ | ° i Pa cliceacigrarahi gular Cre an Sane Oeiig’™ a Notice of "Tetoat to ‘Hold: silane > Lien filed be Rich. ard M. Givitt,: and John F, Neff on I ebr uary 28, 1969, Pe, Mtached to the Notice of hitent to Hold Attorneys” Lien was a copy of the conjract entered into between the Mass Transportation Authority and Joli Fr. Neff and Richard. M. Givan, the attorney s providing that the attorneys re- ecive a contingent. fee of te per cent (105% ) of the amount received, by the Mass Transportation | Authority during the first vear the law is in ef fect. The same order .was first’ entered by this Court on October 21, 1969, but vacated. It Was emlered again on Nove ‘mber 6, 1969, It contained the s: ame words.regarding payment of attorney fees as. did the order ‘of I ebruary 26, 1970. On November, 10° 1969, ihe Petitioners filed a petition to transfer the order of November 6, 1969, to the Indiana Supreme Court. This pe tition’ Was denied on November 17, 1969, by a vote-wt : 3 to : Ww th ene abstention. Nowhere j in the petition to transfer Was phe question of attomey’s fees raised. f 16, 1969, after numerous delays. The portion regarding payment of attorney fees again was in exactly the same terms as in, all the other orders. Again, on January 5, 1970, when the Petiii tiers filed a Petition to Transfer the _opin- ion and order of Deceinher 16, 1969, to the Indiana Supreme Court, the question of attorney s fees Was net raised, The Appellate Court renewed this order on December: . | | ; — ‘AUDITOR WAS PROPERLY SUBSTITUTED | AS A PARTY | Aside from the fact: that this question Was not season- ably raised: by the. Petitioners, substitution was properly made for several reasons. The petitioners hadgentered gen- eral appearances by. filing numerous pleadings. The: Peti- tioners’ were’ State officials and took their’ office lis pendens, and were ‘bound ‘to know of the’ suits: pending against their predcééessor, They stepped into the shoes of: theyformer office holder with all of the notice he hid. ~- This si an ac at length in State ex rel. Mass. . Sfeictengi Auth. ov. dndiana Revenue Bd, (1969), — Ind. s\pp. —#, 253 N.E. aL re pat pages 728 to730, transfer dle nied. The, ruling hy the highest”court of a state that a substi- — tution. of defendants was properly made under state law and _practices is, conclusive’ and: binding on the United States Supreme Court. orice | . _ Boston r, Jiickson, Mass. 1922, 260 U.S. 309, 45 S.Ct. oat OCD. Rd. 274, ! THE DEPARTMENT OF TRANSPORTATION OF THE CITY OF INDIANAPOLIS HAD INHERITED THIS SUIT AND THE PROCEEDS THEREFROM. Under Nets of 1969, Ch. 173, S314 as foutid in Burns’ « “Indiana Statutes Annotated (1970. — ), Seetion 48-9213, pendix page A-2). . (Hedpondent’ s Ist Appendix, pages --- to — ah and Acts of - 1969 ‘Ch. 173. § 100, ‘as found in Burns’ Indiana Statutes Annotated (1970 Supp.) Section 48-9353, (Respondent’s Ast Appendix pages — to’ +) as of January 1, 1970, all of the powers, shiieuticns and duties of the Mass T ransporti \- tion authority including. all pending rights and liabilities relating to that Board’ were transferre zt to the Deyartme nt - of Transportation of the ity of Indianapolis, and jthe Mass T ransportation Authority ceased. to exist. ' —One-oef the powers of the ees Authority AUDITOR’S DUTY. AROSE DID NOT JUSTIFY “HER REFUSAL ‘TO: FURTHER OBEY THE. ‘MANDATE _— The Petitioners: argument on pages 21 and 22 of their petition’ is based upon the premise ‘that “Where defen ants. are order ‘od to perform certain duties enjoined by va xpecifie statute and thereafter the, statute is repealed, the proceedings. will terminate.” In other warde, let the Mass Transportation Authority have its judgment. The Legisliture ean repeal thé statute “and there hy ereet a mysterious, invisible w all®hetween the: judgment tind its: enforcement, and this wall will Protect the Auditor from the effects of the mandate. . The. Petitioners the no ciHed four. cases to enforce their’. - arguments, State vr. Crawford, 105 So. H6, 90 F la: 264; Cutecomp v. Cir Mayor, eter 60. Iowa 156, Ad NW. 214; _ oF Mootey v. Drainage District Nof tof R ichardson County. 113 Neb. 197, 274 NW. 467° Tubbs: v. Linn; 70 NW. ‘ . > ‘ f j . oro - 213. .? now a . Judgment everacerued, : ° , ; . = 18 “ Three of these cases have no application here, all for the ‘same reason: no final’ judginent. had been rendered before the repeal of the’ legislation» under : whieh the mandamus actions were pending. | ~The vase of State v. Crawford, 90 Ff la. 264, 105 So. 446, dealt with an alternate writ of m: dams which. is not a final judgment. The court: specific ally noted that. as long as the legislature repealed a statute establishing a duty and the repealer came before the peremptory writ (final judg- ment), an alter nate writ. could he dismissed. The same was true inthe case of Cutcomp cv. Utt, Mayor, ete., 60 towal 156,14 N.W, 214. In that case the mandamus petition was not filed until the’ day before the amendatory ordinance went into-affeet, and there Was nQ final’ judg- ment. It; too, could be dismissed, act e) - Also, in Tubbs 1 r Linn, 70 x. \V. 2a 3é2, ‘the Commis- ., sloner’s discretion, to issue. permits had been withdrawn ~ by statute bi fore the mandamus was issued, so no final » ° The Petitioners cite the case-of Mooney e. Drainage District No. 1 of Richardson Cointy, 113: Neh, 197, 274 ‘ ties in Inditima up toe that time could not: thereafter be taken away from them by any subsequent repealing legis- lation. The Auditor could net be excused from complying by any subsequent action by. the Legislature, Since the judgment was in the? form of a mandate to the Petitioners, the proper remedy in exeeution of the mandate was an- order to the proper officer to comply and then contempt procecdings H the officer refused. This is exactly what the court did. * THE STATE AUDITOR MAY NOT PLACE HER OWN INTERPRETATION OF THE INDIANA AND UNITED STATES CONSTITUTION ABOVE THAT OF A COURT The Auditor was under a duty to support the Constt- tutions of Indiatia and the United States; This means she must obe ¥ these Cons Litutions, not as she inte rprets them, but ree io judicial interpretation, ; 42 line Jur, . Public Administrativé Law, * GS,-p. B80, — Note 173 a . State ex rel. Atautie. Coast Line R. Co. ve. Board vt k quali: ers, S4A Flat 5 OO, 94 So. OS1, 20 ALR Sov. . 5 “The Pnidiana Appellate Court) and. Indiana Supreme. Court have each consistently sgid that the Auditor would not be violating her oath of offiee by compliing with the mandate of the Appellate Court, ’ ES ~~ 21 . * The Indiana Appellate Court in its opinion in State ex rel. Mass. Transp.: Authority v..Indiana Revenue Bd. (1969) — Ind. App, —,. 253 Nv. 2d 725, at pages 733. to 36 gave a lengthy explanation of why there was an ap- propriation; that the appropriation was made by the Leg- Islature, that the inheritaneé lax account was part of the General Fund. (See Respondent’s Appendix page A-2 to N-4.)° | The Auditor cannot, even by affidavit, place her judicial ‘interpretations over those of the Appellate Court, in an attempt to justify refusal to comply with a court order. Article 7, Section 1 of the Constitution of Indiana states “The judicial power Of the State shall be vested in a Supreme Court, in Circuit Courts and “such other Courts as the General Assembly may establish.’’ Sar The Howey to interpret the ‘Constitution and stattites is , a judicial power. The Courts are the guardians of the Constitution. 3 3 : Marbury v. Madison (1803), 1 Craneh 137, 2 L.Ed. a ee ie. . : . Prd . Any F ederal questions w tikeh: have been raised are either non-ex xistent or totally insubstantial: — ve, . oe Respectfully submitted, Of Counsel: - * * * Ronatp §S. Lieper P ; JOHN F. NEFF LIEBER & NEFF ' 322 Circle Tower ‘Building 322 Circle Tower Building Indianapolis, Indiana 46204 Indianapolis, Indiana 46204 DONALD E. BOWEN mpc MYERS, NORTHAM & 506. ‘ISTA Peer Building ‘ 150 Wes arket Stree 506 ISTA Center Building = indlanapelia, ‘oo Teg : 150 West Market Street Indianapolis, indiana 46204 Haroip H. KOHLMEYER, JR. Corporation* Counsel, ' City of Indianapolis , City-County Building . F Indianapolis, Indiana Attorneys for Responden ts - “ . APPENDIX ‘A. \Each county treasurer shall make’ a report, under oath, to the state ‘board of tax Commissioners on the first day af January, April, July and October; of each year, of all taxes reecived by him in the three (3) months next pre- se ceding under this act ($$ 7-2401-7-2411, 7-2412a-7-2442), in "resident decedents’ estates, and credited to: the ‘state of "a Indiana, stating for what estate and by whom and when ~paid. The ‘form of such report sbi | be prescribed by the. state board of accaunts. At the sanie time the county audi- tor shall issue his Warrant ‘payable to the treasurer of. state for, such inheritance taxes, iuterest and penalties as are duethe state of Indiana complying with the provisions of seetion-7 (§ 7-2407) of ‘this act, whicli warrant shall be stamped and countersigned hy the. county treasurer as re- quired by law ‘and transmittéd to the state board of tax commissioners With his said report. The secretary pf, the board shall receipt and account for all warrants collected under the provisions Of-this act and shall deposit the same. when received with the state treasurer.in a special account to be created and, known as tlie Inheritance Tax. Account. Quietus. shall be issued by the auditor of state to the state board, of tax commissioners at thie close’ of. each month upon terms and conditions established for similar boards or commissions. It shall-be the duty of the state board of tax commissioners to. audit the reports provided for by, this section. Shortages, as disclosed by said audit, shall he re- ported to and promptly covered * by coutity treasurers and auditors concerned by issuance of warrants for the balance due. Excess. payments as disclosed by the audit ws A-1 ae > : on A-2 of reports shall be, refunded by the board im the manner set out in section 17 (§ 7-2417) of this act and nof paid into the state board of tax, commissioners. Por all sueh - taxes collected hy a county treasurer and not paid into the °~ state board of tax commissioners within thirty (30) days from the time herein required, he shall pay interest at the rafe of ten (10) per ecentum per annum, for w hich he shall he personally-liable. © =~ ; Acts-of 1931, ch. 75, See. 44, as “Amended, being Burns’ Section 7-244. 6. ee a as B. , s. Powers + of, Authority (a) Subject to the “limitations expressly = mae ; ¥ ae api 2) - EB. ‘ga . ‘ e ae , All revenue aceruing to the state treasury eby virtpe’ of the ‘tax levy as fixed by chapter 201: of the Acts of the general assembly of 1921, shall .be paid into and . Shall constitute the state common school revenue fund, and shall be apportioned as now provided by: law. All‘rey enue acerus .ing to the state treasury by virtue of the tax jev y as fixed : -by section fifteen of dsinhes 50 of the Acts of the special ‘session of the general asseinbly of 1920, shall be paid into . and shall constitute the Indiana W orld War Memorial fund, and_ shall be expended as provided by law. All reverue | accruing to ‘the state treasury by v irtue off the tax levy as fixed by section * three of chapter 6 of the Acts of. the - . ‘ general ‘assembly of 1923, shall he paid into and shall eou- . ° — . . . ~ “\s SION, in any: ‘court of record im this ‘state , -A-4 . . . ; ball . ae: ; ag 7 - 7 : ° ‘stitute. the Indiana state board of agriculture fund and shall be expended as now provided by law. All revenue aceruing.to the state treasury by virtue of the tax levy.: as fixed by section one ( ; me 1 . @ : \ \ ‘ a w.. ‘Ga as Lien of Attotngy.— —Any.attorney age 4 his profes- Il be entitled ‘to hold -a “Hien, for his fees, on any judgment rendered in ‘favor of any person or persons employing such attorney to obtain the san Provided, that such attorney, within sixty (60) days oe the time. such judgement shall have: been rendered, enter in writing upon the docket or record where-. ‘in the judgmoeat is recorded, his intention to hold a lien thereon,. together with the amount of jis claim, and if an appeal is taken on such judgment, such lien may be entered within sixty (60) .days fr om the date the opinion of the higher court is recorded in the office -of the clerk of the * - ~ od A-5 trial court Or from the date of final judgment where the cause is reversed and retired. _ Acts of 1865 (Spec. Sess.), ch. 59, Sec. 1 as amended, being Burns’ Section 4-7416. , aaa --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0206%3A2. Public record. Not legal advice.