Concurring Opinion
Sharp, J.I very reluctantly concur in the majority opinion. I do so only because of a deep-seated belief in so-called judicial restraint. As most law school students of my generation I was taught to worship at the altars of the First Harlan, Holmes, Brandies, Frankfurter, Stone, et al. Their collective message, oversimplified, placed limitations on judicial power and tended to maximize legislative power in many areas. Absent certain constitutional limitations the legislatures should be given a wide scope to experiment and, indeed, *690to make mistakes. The legislatures are, or should be, the primary source of public policy. Of course, the courts have long engaged in making of a certain type of public policy by their participation in common law evolution.
In my own mind the judiciary should look at statutes to determine legislative intent with the above premises in mind. Hornbook rules on statutory construction are often of no real avail in this process. These concepts of judicial restraint have particular application in cases dealing with statutory created rights and remedies where there is no constitutional question presented. I agree that the constitutional questions raised here are without merit. (In this regard I would also emphasize that the part of this statute requiring the permission of the State Board to bring an action is not here under constitutional scrutiny.)
As this statute is written there is a strong anti-taxpayer bias in it. This bias inheres in the statutory scheme itself. The notice to the taxpayer may be mailed and the time runs against the taxpayer from the time of posting. In oral argument the Attorney General admitted that the notice to the State Board of Tax Commissioners could be filed by mail but insisted that it must be actually received by said Board by the end of the thirtieth day. We know judicially that it frequently takes two or three days for ordinary mail to reach various points in this state when posted in Indianapolis and vice versa. In reality the statute has placed the taxpayer in a very narrow time frame. The taxpayer may lose two or three days during the initial mailing by the Board and then be obligated to mail the notice to the Board several days early so that it will be actually received by the Board on or before the thirtieth day. In this matter no account is taken for Saturdays, Sundays and holidays as in our present Appellate Rules. In reality the thirty day period is therefore substantially reduced in most cases.
The State Board of Tax Commissioners has not been prejudiced in any manner by its failure to actually receive the *691papers in this case which were filed with the Clerk of the Circuit Court and mailed in Kosciusko County on the thirtieth day. Notice was properly given to the Attorney General, who is, after all, the statutory attorney for the Board. The basic purpose of the statute is to put the Board on notice of the taxpayer’s action so that it can prepare and file the required transcript.
We are forced to base this case on a highly technical noncompliance with one requirement of the statute, i.e., the actual filing of the notice with the Board on or before the thirtieth day.
I concur here only because we must follow the provisions of a badly drafted statute which makes it very difficult for a taxpayer to bring an action to contest an assessment. This difficulty inheres in the statute and we are stuck with it until an enlightened legislature sees fit to change it.
I am sure these words are of little consolation to the taxpayer litigant in this case. The highly technical result in this case may well prove Charles Dickens’ comment made over a century ago, that the law is an ass. Sometimes even to those of us involved in its processes it indeed appears that way.
Note. — Reported in 281 N. E. 2d 547.