CONCURRING OPINION. Concurring in the result, I desire to state my views of the questions involved.
The taxes sought to be recovered were voluntarily paid, and could not be recovered in an action in assumpsit. Appellees, therefore, must look to some statute for a remedy, and, such a statute being in derogation of the common law, appellees must bring themselves clearly within it, which they have attempted to do.
Section 14376, Burns 1926, § 64-2819, Burns 1933, § 15881, Baldwin's 1934, is a substantial re-enactment of the statute of 1853, with certain limiting provisos, the last of which is: "That no taxes shall be considered as having been wrongfully paid or as having been wrongfully assessed when same were extended or assessments made as the judgment of taxing officers authorized to make same, and concerning which no complaints were registered at the time same were made either by application for rehearing or by any appeal."
It appears that the assessments were made as the judgment of the taxing officers authorized to make the same, but the appellees had no notice of the assessments, and, therefore, obviously no opportunity to register a complaint, or apply for rehearing, or appeal, and, therefore, cannot come within the statute if the proviso quoted be literally construed. So construed, the proviso grants the privilege of a refund to those who have had notice of the assessment, and have complained, and have applied for a rehearing, or have appealed, and withholds that privilege entirely from those who were equally *Page 156 entitled to complain and ask for a rehearing, or appeal, but were deprived of the opportunity for such action by the failure of the tax officers to comply with their statutory duty to give notice. Thus, one class, which has been accorded its statutory right to notice, is granted a remedy, while another class similarly situated, which has been wrongfully deprived of notice, is denied the same remedy.
Section 23, Art. 1, of the Constitution, provides: "The general assembly shall not grant to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens." In my judgment, the proviso quoted, literally construed, is clearly in conflict with this constitutional provision. The question of the constitutionality of the statute has not been presented, but since appellees must rely upon the statute for relief, and we must construe and interpret the statute, we are bound to interpret it in the light of the constitution and determine its effect in the light of the constitution. If we consider the last clause unconstitutional, it has no effect, and the statute, being otherwise complete and operable, will stand. In my judgment, the last clause can only be regarded as within the constitution if it is interpreted as intended to apply only to those who have had notice, which would permit appellees to come within the statute by showing that they had no notice. So construed, appellees are not entitled to relief, since the assessments were made by the statutory officers.
If the last clause is treated as unconstitutional, the part of the statute which remains is substantially the same as the refund statute of 1909, which would still be in effect if this entire statute were held unconstitutional. Under such a construction we are required to interpret the term "wrongfully assessed." I feel that it was not intended that the refund statute should confer upon *Page 157 one who had voluntarily paid the questioned taxes a right to recover upon a lesser showing than would be required in a court of equity to enjoin the taxes in a suit brought before payment. The decisions of this court interpreting the term "wrongful assessment" are conflicting. I feel constrained to adhere to that line of cases which holds that to be wrongful an assessment must not only be illegal, but also unjust and inequitable. Appellees do not allege that their assessment is unjust or inequitable. One is bound to know that his property is subject to some tax, and a just and equitable assessment should not be enjoined or refunded because of lack of notice, or other irregularity, or illegality in the making of it.