*672Dissenting Opinion.
Wiley, J.I am unable to agree with the conclusion reached by the majority of the court in the prevailing opinion. The point of difference between us is as to the sufficiency of the complaint. It is my judgment that the cause of action stated in the claim filed by appellee against the decedent’s estate is not sufficient upon which to base a recovery. The conclusion reached by my associates is in conflict with the decisions of our Supreme Court, if I rightly interpret the questions therein decided. So- far as I am advised, there is no statute authorizing a city treasurer to prosecute a claim in the circuit court against an estate to enforce collection of delinquent and unpaid taxes against such estate; but conceding, without admitting, that he possessed such authority, my first inquiry is to determine whether appellee has stated any cause of action in the claim filed, which must be treated as his complaint.
It is earnestly contended that the statement of the claim is insufficient to warrant a recovery; that it is not merely technically defective, but radically and fatally so, by reason of the theory upon which it is based, and the omission of necessary facts, essential to the existence of a cause of action. A proceeding to enforce the collection of taxes is essentially different from that to enforce a debt upon contract. It is the settled law of this State that “a tax is not an ordinary debt. It is not founded upon contract, express or implied.” Gallup v. Schmidt (1900), 154 Ind. 196, 215; DePauw v. City of New Albany (1864), 22 Ind. 204; Richards v. Stogsdell (1863), 21 Ind. 14. In Shaw v. Peckett (1854), 26 Vt. 482, it is held that the assessment of taxes does not create a debt that can be enforced by suit. Preliminary to the collection and payment of taxes there must be a valid assessment upon the property that is assessable: It seems to me, therefore, that before any department or branch of the civil government can proceed to require a citizen to pay *673taxes, it must first show a lawful, assessment. The rule prevails -in this jurisdiction.that a statement of a claim against an estate must state affirmative facts which show prima facie that the estate is lawfully indebted to the claimant. While counsel for appellee do not concede that it is necessary for the claim in this, case to show affirmatively, that a lawful assessment was, in the first instance, made, they do beg the question .to some extent, by saying that an examination of the evidence will show that it was in fact made. But we can not look to the evidence, to determine the sufficiency of a pleading, and the claim filed here must be regarded as appellee?s pleading. ....
. We-.are not advised by .the. claim whether the property of the estate.was assessed .in the .regular way, or whether it was assessed at all, .or whether this is a proceeding to collect taxes upon the assessment, of property omitted from taxation, and which would constitute a special and an exceptional .assessment. Vogel v. Vogler (1881), 78 Ind. 353. In. the case last cited, Yqgler, as treasurer of Bartholomew county, brought an action against Yogel, as guardian, and his wards, to recover for .unpaid, taxes. The complaint - averred that on a specified day $5,000 came into the guardian’s hands, which, belonged to his wards; that said .guardian and wards,resided in said county, and that said money was.liable to taxation for the years.1872 to 1878, inclusive; that neither the.guardian nor the,wards gave in .said property, for-.taxation during said time,-and that.no taxes were assessed or. paid thereon; that, it appearing to the proper officers that said property had not been assessed for taxation during said time, the “proper authorities” did, in January, 1879, assess the same for all of said years; that the same was duly placed on the tax duplicate of said county for.collection, ,aud,the same was duly, placed, in the hands of the treasurer for collection, A. schedule of the. taxes alleged to have been assessed against said money for each of the *674said years is embodied in the complaint. Jt is then averred that the several amounts assessed were due and unpaid, that said wards had un personal property that could be seized to satisfy the same, and that the guardian had failed and refused to pay the amount assessed, after demand upon him so to dp. It was further averred that appellee, as treasurer, had a lien on the funds in the hands of the guardian for the payment of the same, and asked that the guardian be required to pay said taxes out of any money in his hands. In that case it will observed that a succinct statement is made of the manner in which the taxes were assessed; that the guardian and his wards were residents of the county, and that the money was taxable therein; that the taxes were assessed thereon by “the proper authorities;” that a demand had been made for payment, which was refused; and that there was no personal property subject to seizure to satisfy the same. With all these averments, the Supreme Court held that the complaint did not state any cause of action.
Under §8587 Eurns 1901, Acts 1897, p. 226, where an administrator or other fiduciary fails to pay any instalment of taxes when due, it is made the duty of the county treasurer to present to the proper court a brief statement in writing, setting forth the fact and amount of such delinquency, upon which the court shall issue an order, directed to such delinquent, commanding him to show cause why such taxes should not be paid. In a proceeding under that statute, sufficient facts must be stated to show a valid and legal assessment, and the sufficiency of the statement can be tested by demurrer or by an assignment of error. Lang v. Clapp (1885), 103 Ind. 17. In the case at bar there is only the naked statement that the estate is indebted to the city of Yincennes for “taxes on personal property for the year 1898.” Under the authorities, no cause of action is stated.
The judgment should be reversed.