86 Ind. 8 (Ind. 1882), 10,519, Board of Commissioners of County of Decatur v. State ex rel. Hamilton
| Judge | Niblack, J. Howk, J., doubts. Woods, C. J., dissents. Howk, J., doubts. Woods Woods, C. J. |
| Parties | The Board of Commissioners of the County of Decatur v. The State, ex rel. Hamilton |
| Date | Invalid date |
| Citation | 86 Ind. 8 |
| Court | Indiana Supreme Court |
| Docket Number | 10,519 |
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From the Decatur Circuit Court.
The judgment is affirmed, with costs.
OPINION
This was a proceeding by the State, on the relation of William W. Hamilton, against the board of commissioners of the county of Decatur, for a mandate to compel the levying of certain taxes charged to have been voted for the construction of a railroad. R. S. 1881, section 1167, et seq.
The complaint upon which the proceeding was based stated, that, on the 19th day of July, 1879, a petition was presented to the said board of commissioners, purporting to be signed by twenty-five freeholders of Washington township, in said county of Decatur, asking that such township be required to aid in the construction of the Vernon, Greensburgh and Rushville railroad by an appropriation of $ 75,000, to be invested in the stock of the company organized to construct said railroad; that thereupon said board ordered an election to be held in said township of Washington, on the 25th day of August, 1879, which election was held accordingly; that the result of
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that election, as ascertained and declared, was, that a majority of the voters of that township voted in favor of the proposed appropriation; that the taxable property of that township for the year 1878, as shown by the tax duplicate, amounted to the sum of $ 3,867,635, and for the year 1879, as shown in like manner, to the sum of $ 3,814,245; that said board, at its regular session in June, 1880, levied a tax of one per cent. on the taxable property of the township, and, at its June session in 1881, made a like levy, to raise money to pay the appropriation voted as above; that of the taxes so levied the sum of $ 52,400 has been collected and paid over to the proper railroad company, and the sum of $ 15,600 remains on the proper tax duplicate uncollected; that after said levies of taxes are wholly exhausted, there will remain approximately the sum of $ 7,000, voted as an appropriation from said township, unlevied, and due the railroad company on account of the same; that the taxable property of said township for the year 1882 amounts to about the sum of $ 3,500,000; that, on the said 19th day of July, 1879, a petition was also presented to said board, purporting to be signed by twenty-five freeholders of Clinton township, of said county of Decatur, asking an appropriation from said township of the sum of $ 11,000 to aid in the construction of said Vernon, Greensburgh and Rushville railroad, by taking stock to that amount in the railroad company organized for the construction of such railroad; that thereupon said board also ordered an election to be held in said township of Clinton, on said 25th day of August, 1879, and the result of said election, as ascertained and declared, was that a majority of the duly qualified voters of said township had voted in favor of the appropriation prayed for in the petition; that the taxable property of said township for the year 1878, as shown by the proper tax duplicate, amounted to $ 574,920; and for the year 1879, as thus shown, to $ 591,030; that said board, at its regular June session in 1880, levied a tax of one per cent. on the taxable property of said township of Clinton, and, at its June session of 1881, made another
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and like levy of one per cent. on said taxable property, to raise money to pay said appropriation from said township; that of said last named levies of taxes the sum of $ 7,400 has been collected and paid over to the proper railroad company, and the sum of $ 2,400 remains uncollected; that, after this last named sum shall be collected and paid over as required by law, there will remain approximately the sum of $ 1,200 of the amount so voted as an appropriation by Clinton township, unlevied and unprovided for; that the taxable property of said township for the year 1882 amounts to about the sum of $ 500,000; that said railroad has been fully constructed and completed, and the cars are running regularly over the same through said townships of Washington and Clinton, and that said railroad was so constructed and completed largely upon the faith of the appropriations voted by said townships in aid thereof, as above set forth; that said board had, at its June session of 1882, been requested to levy a tax of one-fifth of one per cent. on each one hundred dollars' worth of taxable property in said township of Washington, and to also levy a tax of one-fourth of one per cent. on each one hundred dollars' worth of taxable property of said township of Clinton, for the year 1882, to make up the deficiencies in the amounts heretofore levied to pay the appropriations due from said townships respectively; but that said board had refused to make any levy of taxes to make up such deficiencies; that the relator, Hamilton, was a resident of said township of Washington, and the owner of taxable property in that as well as in Clinton township, and one of the signers of the petition asking for an appropriation from Washington township in aid of the construction of the railroad herein above named. Wherefore an alternative writ of mandate against the board of commissioners was demanded.
The board waived the issuing of the writ against it, and, voluntarily appearing to the action, demurred to the complaint for the alleged insufficiency of the facts relied upon as a cause of action. The demurrer was, however, overruled, and, the
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board refusing to answer further, final judgment was rendered against it, ordering it to make additional levies to supply deficiencies in former levies, as it was requested to do at its June session of 1882.
The only question we are required to decide is, was the complaint sufficient upon demurrer to entitle the relator to a writ of mandate against the commissioners?
The first objection made to the complaint, in its natural order, is, that a writ of mandate is not the appropriate remedy in the class of cases to which this belongs; that the levying of taxes in a case like the one now presented involves the exercise of a discretion quasi-judicial in its character, and of a kind which the courts can not control by the issuance of such a writ to the tribunal possessing the necessary power to levy the required taxes. The authorities do not, however, sustain the position which the appellant thus seeks to maintain.
The code of 1881 provides that "Writs of mandate may be issued to...
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