Dissenting Opinion.
McCabe, C. J.It is to be regretted that the conclusion reached in this case could not be unanimous. But I am constrained to disagree with the conclusion of the majority. It appears from the record, that the alleged contempt consisted of the refusal of the appellant to comply with the order of the circuit court requiring *14him to answer certain questions put to him by the board of equalization of the county, convened in the county commissioners’ court room, in Martinsville, in said county of Morgan. Such board had subpoenaed him, when so convened, and propounded certain questions, which he refused to answer. His refusal was made known to the circuit court by an information regularly filed, whereupon a rule was entered, and served upon him, to show cause why he so refused. It appears, from his showing, in response to the rule, and from the record, that, he was the president of the First National Bank of Martinsville, in said county, duly organized under the laws of the United States; that the board was seeking to find out from him what tax-payers of the county had deposits in said- bank on the first day of April, 1890, with a view, if any such were found, of adding such deposits to the list or lists of such taxpayers, in case they had not already been listed for taxation by such tax-payers.
The only law in force at that time under which it is sought to justify the action of the board and the circuit court were section 6317, R. S. 1881, and section 6397, R. S. 1881, as amended by act of March 9, 1889, of our former tax law. Elliott Sup., section 2127. The former section reads as follows: “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; and it shall be the duty of every assessor or other officer charged with the duty of listing property for *15taxation, or charged with the duty of collecting taxes, to give, in writing, all information he may acquire in reference to the concealment of property from taxation hy any person .or corporation before mentioned to county auditors, auditor of State, or boards of equalization aforesaid. ”
The amended section 6397 (Elliott’s Supp., section 2127) provides, among other things, that such board of equalization shall be composed of the commissioners of the county and four freeholders of the county, to be appointed by the circuit court, to be called the county board of equalization. “The board shall meet, for the purpose of equalization, in the room of the county commissioners, in the court house of each county, on the third Monday of June, annually. Two weeks’ previous notice of the time, place, and purpose of such meeting shall be given by the county auditor in some newspaper of general circulation * * * in the county. * * * Such board shall have the power to hear complaints of any owner of personal property, * * and to correct any list or valuation as they may deem proper. It shall also have power to equalize the valuation made by the assessors, either by adding to or deducting from their valuations, such sums as * * - * shall appear just and equitable, and in the discharge of this duty may send for persons and papers. Such board shall also have power to add and assess omitted property, * * * or to increase the valuation placed upon property that has been listed for taxation. It shall cause the names of persons to whose lists, property is to be added, or the valuation of whose property is to be increased, to be inserted in the notice hereinbefore provided for, * * * or cause to be served upon the person to whose list property is to be added, or the valuation of whose property is to be in*16creased, a written notice that it is proposed to revise or correct his list. * * * The tax-payer whose list it adjudges shall he revised or corrected as aforesaid, shall he liable for all costs occasioned by such revision or correction.”
The only authority conferred on the board by section 6311 is “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 administer oaths, etc. The power attempted to be exerted in this case is not conferred in the right to inspect and examine the records of all public offices, because a bank is not a public office, nor is the power claimed created in the right to inspect and examine the books and papers of all corporations, because that would confer such right as against incorporated banks and leave unincorporated banks entirely free from such liability. It is obvious that the Legislature never intended to make such a discrimination in favor of unincorporated banks, and therefore had no reference to banks in the use of the word corporations. But in conferring the right to inspect and examine the books and papers of all tax-payers in this State, the right to examine and inspect the books of all banks in the State is necessarily-included. But the right to examine and inspect the books and papers of a tax-payer, in my opinion, is given for the sole purpose of enabling the officers and boards of equalization to properly assess and tax the property of such tax-payer and not for the purpose of enabling them to assess and tax other tax-payers’ property, or for the purpose of enabling them to discover property of other tax-payers concealed for the purpose of avoiding taxation. Moreover, this 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, evi*17dently, in my opinion, was never intended to authorize the county hoards of equalization to summon the keeper of such books to bring the same before such boards to be inspected. Because that would involve the right of the State board of equalization and the State auditor to summon the clerk of the circuit court and the recorder of the remotest county in the State to the State capitol to bring with them the public records of their respective offices. This is so, because the same words that confer power on county boards and county auditors confer on the State board of equalization and the State auditor the same power or right. It would, it seems to me, be very unreasonable to suppose that the Legislature intended by the language employed to confer the right and power on the auditor of State and the State board of equalization to compel county officers to transport the records of their offices to the State capitol to be examined and inspected by the State board of equalization or the State auditor.
If that is so, it then follows necessarily from the lam guage employed, even if we concede that banks (which cannot be)' are included in the word corporations, that they cannot be required to transport their books to any other place for inspection and examination by the boards of equalization, either State or county.
The court does not seem to have made the order comprehensive enough to require the appellant to produce the books of the bank before the board, but did require him to answer all questions the board might ask him as to deposits by any person or corporation of said county named or mentioned by said board, who had money, notes, or bonds on deposit, or in the.custody or control of the bank, on the first day of April, 1890, and also that he answer as to persons or corporations of said county who, before the said first day of April, had con*18verted his or her taxable money into United States notes called “greenbacks,” or into other nontaxable securities of the United States, and, further, that he permit said board to inspect and examine the books of said bank in his custody and control.
It does not appear that the board, or any member thereof, ever applied at the bank and requested to be allowed to inspect any book or books or any paper or papers of said bank for any purpose whatever, nor does it appear that any such right was refused at the bank or place of business of such bank by the appellant or any one else. The appellant, therefore, was not guilty of wrongfully refusing the board the right to have the books of the bank produced before them while in session and to have an inspection thereof, even though the board had jurisdiction to carry on the investigation in which they were engaged.
The question then remains, did the appellant wrongfully refuse to answer the questions propounded ? That question must be answered by a consideration of the amended section 6397, aboved quoted. It confers three distinct powers on the county board of equalization:
1. To hear the complaints of any owner, etc.
2. To equalize the valuation made by assessors, either by adding to or deducting from their valuations such srims as * * * shall seem just and equitable, and in the discharge of this duty may send for persons and papers.
3. Such board shall also have power to add and assess omitted property * * where it deems it necessary to add omitted property, or increase the valuation placed upon property that has been listed for taxation.
The power to send for persons and papers, annexed to the second power conferred, namely, to equalize valuations, etc., was held in State v. Wood, 110 Ind. 82, to *19apply also to the other two powers, namely, hearing' complaints of owners, etc., and hearing cases for adding omitted property and increasing the valuation placed upon property previously listed. No question of want of jurisdiction of the board of equalization for lack of notice to the tax-payer whose list was to be revised was involved in that case.
It is clear that the board was not, in the case before us, engaged in the exercise of the first or second power conferred or duty imposed by the above section, nor is there any claim made that they were so engaged when appellant refused to answer the questions of which the board complained. It remains to be considered whether they were exercising the third power conferred when appellant refused to answer their questions. As we have seen that power was “to add omitted property, or to increase the valuation placed upon property that ha,s been listed for taxation.”
The board has no power except such as is expressly conferred by statute and such as is necessarily implied to effectuate the powers expressly conferred. White v. Conover, 5 Blackf. 462; Mossman v. Forrest, 27 Ind. 233; English v. Smock, 34 Ind. 115; Gavin v. Board, etc., 104 Ind. 201. It was not a court, but was clothed with and required to exercise quasi judicial powers and duties. State v. Wood, supra. The power ‘ ‘ to add omitted property, or to increase the valuation placed upon property that has been listed for taxation, ” carries with it by implication the power to bring before the board any competent evidence of such omission or undervaluation. State v. Wood, supra. But this implied power can only be exercised in connection with and incidental to the exercise of the main power to add omitted property or increase the valuation, etc. This power cannot be exercised by them at all without giving the notice *20prescribed’by the statute to the person or'persons to* whose list property is to be added, or the valuation of whose property is to be increased. Kuntz v. Sumption, 117 Ind. 1 (2 L. R. A. 655). The second paragraph of the* answer states, and the demurrer admits, that no notice had. been given to any such tax-payer, nor is any claim made here that there had been such notice given; but it is claimed, that the board was engaged in a preliminary investigation, to ascertain if any of the depositors in said bank had failed, to list their deposits, or rather to ascertain if any taxpayer who had listed no deposits on April 1, 1890, had deposits in sáid bank at that time ; that they had a list of some twenty-five of such about whose deposits they proposed to inquire. The appellant objected to answering as to such inquiries without any person or persons-being named against whom it was claimed that they had omitted to list their deposits, or that they had exchanged taxable funds for nontaxable on the ground, that no notice had been given to any of such tax-payers of such proposed action. And therefore appellant claimed that the board had no jurisdiction to pursue* the investigation. If they did not have such jurisdiction, they had no power to administer any oath to appellant. 18 Am. and Eng. Ency. Law 303, section 2, and authorities there cited; Burns R. S. 1894, section. 1816 ; R. S. 1881, section 1747. This is especially true in this case, because the only power conferred on them in that direction is found in section 6317, above quoted, which is that ‘‘ they shall also have power to administer all necessary oaths or affirmations in the discharge of their duties.” If they had no power to pursue the investigation, it was no part of their duty to pursue it, and hence ■ any oath administered by them therein was without authority, because not administered in the discharge of their duty. If they had no power to admin*21ister any oath to appellant, any false answers he might have made to questions put to him would not have constituted perjury. 18 Am. and Eng. Ency. Law, supra, Burns R. S. 1894, supra; State v. Wood, supra.
If the questions and the investigations they related to were outside of the jurisdiction of the board, then the refusal to answer them was not a contempt. Yanfleet Oollateral Attack., section 751, and authorities there cited. Disobedience of an order of court that had no jurisdiction, where there is a want of authority, is not a contempt. 3 Am. and Eng. Ency. Law. 788, section 1, and authorities there cited in note 1. Acting against an erroneous order of the court is not a contempt. 3 Am. and Eng. Ency. Law, section 1, note 2, and authorities there cited.
It does not seem to me that in the absence of a notice to some tax-payer whose tax list is the subject of investigation, there can be any question that the board had no jurisdiction to pursue such investigation, and hence had no power to require appellant to answer any question in relation thereto, and that the circuit court had no authority to require him to do so, any more than if said board had been a body of private gentlemen who took it into their heads to find out all about the private affairs of the bank and its depositors for their amusement or private gain.
But it is sought to be maintained that a preliminary investigation is essential to enable the hoard to know who to notify of the purpose to revise their tax lists, and my brothers in the prevailing opinion uphold that contention. And it is conceded by the appellees and the prevailing opinion, that such investigation previous to notice cannot result in anything at most beyond furnishing the hoard information who to serve notice upon with a view of going over the evidence again to revise *22such persons’ tax list. The obstacle in the way of this theory is "that there is nothing in either section of the statute authorizing the county board of equalization to institute any such preliminary investigation or proceeding in their capacity of a quasi judicial body. Besides, it is contrary to all the analogies of the law.
The circuit court, being a court of general and almost unlimited jurisdiction, could exercise no such wonderful power as that claimed and asserted here for this quasi judicial body. Many cases are begun in the circuit court which perhaps would never have been begun if the plaintiff could be allowed to-institute a preliminary trial or investigation, without being responsible for costs, to find out what the'evidence is going to be. Who would claim that such a proceeding could be maintained? In addition to the objection that the circuit court would háve no jurisdiction for want of notice to the opposite party, there is the other substantial objection that it authorizes. two trials substantially of the same cause, and one of them without jurisdiction or effect. And that is the effect of the holding in the prevailing opinion. It in effect allows two trials of the same matter. One in the absence of the party to be affected and the other in his presence or on notice to him. On the first trial there is no provision made for the payment of the costs thereof, on the second there is. That is an additional reason why the Legislature intended that there should be but the one trial, the one in which the tax-payer is brought in with notice, and in which he is made liable for costs if his list is revised.
But if the theory of the two trials prevails, on the second, when 'the tax-payer is brought in by notice, all the evidence must be gone over again in his presence and hearing, or the notice to him amounts to nothing more *23than notifying a party after he has been tried without notice to come in and show cause why judgment shall not be rendered against him on the evidence heard in his absence. He does not know what has been proven against him, and hence does not know where to begin or what evidence to introduce. That would be a mockery of justice. But if to this it is answered that such injustice may be obviated by going over the evidence again in his presence, that was introduced against him before the board in his absence, and before he had notice, such answer is not good; because he is made to depend wholly on those unfriendly and whose interests are adverse to him to bring again before the board the same, and all, evidence they heard in his absence. If they fail in this, his case may be lost simply because some adverse item of evidence had been heard by the triers.in his absence and of which he was never informed, and which, if he had been correctly informed, he could have met and overcome. Besides, a deal of incompetent evidence might have been adduced on the preliminary investigation in his absence before the triers, where he had no opportunity to keep it out by objection. It has made a lodgment in the minds of the triers; indeed, it has caused them to form and express an opinion as to the merits of the case against him. To offer him a trial then, by even going over all the evidence, looks to me strongly like a mockery of justice. In fact, it is very little better, if any, than letting the board decide against him on the first or preliminary investigation or trial without notice to him at all.
For these reasons I am constrained to withhold my assent to the conclusion reached by my brothers in the prevailing opinion, and to believe that the board had no jurisdiction for want of notice to any tax-payer, and that *24the circuit court erred in attempting to compel the appellant to answer questions touching such investigation; and I am therefore of the opinion that the judgment ought to he reversed.
Filed May 2, 1895.