Advisory Bd. of Coal Creek TP. v. Levandowski

• Citation: 84 N.E. 346
• Decision Date: 31 March 1908
• Docket Number: No. 6,721.,6,721.
• Parties: ADVISORY BOARD OF COAL CREEK TP., MONTGOMERY COUNTY, et al. v. LEVANDOWSKI et al.
• Court: Indiana Appellate Court

84 N.E. 346

ADVISORY BOARD OF COAL CREEK TP., MONTGOMERY COUNTY, et al.

v.LEVANDOWSKI et al.

No. 6,721.¹

Appellate Court of Indiana, Division No. 1.

March 31, 1908.

Appeal from Circuit Court, Montgomery County; J. Claybaugh, Special Judge.

Action by the Advisory Board of Coal Creek township, Montgomery county and others, against Peter Levandowski and others. From a judgment for defendants, complainants appeal. Reversed.Haywood & Burnett and Jones & Murphy, for appellants. Crane & McCabe, A. W. Reynolds, and W. R. Wood, for appellees.

HADLEY, P. J.

This is an action brought by appellants, in their official capacity as the advisory board for Coal Creek township, and in their individual capacity as resident taxpayers of said township, against appellees, to enjoin said appellees from carrying out a contract for the construction of a $28,000 schoolhouse in the town of Wingate in said township, and from the selling of bonds of the par value of $30,000 to pay for said construction, and to set aside, cancel, and declare invalid said contract and divers orders of the advisory board of said township, by which it was attempted to authorize said township trustee to enter into said contract and to issue and sell said bonds. The complaint is in two paragraphs. Appellees demurred separately to each paragraph of the complaint, which demurrers were sustained. Appellants refused to plead further, and judgment was rendered against appellants and in favor of appellees.

The complaint is voluminous, and sets out numerous irregularities in the proceedings, both preliminary to the letting of the contract for the construction of said schoolhouse and the issuance and sale of said bonds, and also irregularities at the letting. In our view of the case it is unnecessary to set out these various averments, since this cause may be determined upon a single question presented by certain averments. These averments are to the effect that the schoolhouse in controversy was to be located in the town of Wingate, containing 300 or 400 inhabitants; that it already has a large four-room school building amply sufficient for the accommodation of the school children attached to said district for school purposes; that the same is sanitary in every way and of the value of $8,000; that the trustee and two members of the advisory board desired to construct a new building in said town of Wingate as an enterprise movement to the town, and as there was no emergency or indispensable necessity for the erection of such a building the trustee procured an agent of the State Board of Health to make an order pretending to condemn said building as being unsanitary.

It is then averred the State Board of Health had no jurisdiction in such a matter except on appeal from the local board of health; that, basing their action entirely upon said condemnation, appellee trustee, at the regular meeting of said advisory board on September 4, 1906, laid before said board as a part of his estimates for his annual expenditure his request for the construction of a new $30,000 school building, and authority to issue bonds in said amount to pay therefor. One member of the advisory board present objected to the destruction of the old building on the grounds that it was of too much value to be destroyed; that, if the building was unsanitary, it could be made sanitary with the expenditure of a small sum of money, but by vote of two members of the advisory board, and over the written objection of the third member, the two members made and entered an order that an emergency and indispensable necessity existed for the construction of the $30,000 school building in the town of Wingate; that the two members of the board, over the objection of the third member, and while the third member was voting against said order, declared that an emergency existed for the issue and sale of the township bonds in the sum of $30,000 for the erection and construction of said new school building, and made an order for the sale of the old building along with the letting of the contract for the new building.

It is then averred that, acting upon these orders as a basis, a pretended contract for the construction of said building was let to appellee Levandowski, and that said trustee was proceeding to issue and sell said bonds and to sell said schoolhouse. It is also shown by the complaint that two of appellants are the successors in office to the two members of the advisory board that made and entered the orders complained of. If these preliminary orders upon which all subsequent contracts and orders for the construction of said schoolhouse and issuance and sale of said bonds must be based are invalid and void, all such subsequent contracts and orders pertaining thereto were invalid and void, and the demurrers should have been overruled. It is contended by appellants that the original order declaring an indispensable necessity is invalid, for the reason that it was not declared by the consent of all the members of the advisory board present. The question thus presented calls for a construction of section 6 of the act of 1899, known as the “Township Reform Law” (Acts 1899, p. 154, c. 105), as amended by section 1 of the act of 1901 (Acts 1901, p. 415, c. 185), which amended section is as follows: “Upon a special call of the township trustee or the chairman of the advisory board or a majority of the members of said board, given in writing to each member thereof, stating the time, place and purpose of the meeting, said board may, if a quorum be present, by consent of all the members present, determine whether an emergency exists for the expenditure of any sums not included in the existing estimates and levy. In the event that such an emergency is found to exist said board may authorize by special order entered and signed upon the record, the trustee to borrow a sum of money to be named sufficient to meet such emergency; and at the next annual session of the board a levy shall be made to the credit of the fund for which such expenditure is made to cover and pay the debt so created: Provided, however, that if at any annual or special meeting of said board it shall be found indispensably necessary to provide for the construction of a school building, the cost of which building or the proportionate cost thereof if the same be a joint graded high school building will be in excess of the sum available therefor out of any annual levy, then in that event, such board may authorize such trustee to issue township warrants or bonds to pay for such building, or the proportionate cost thereof, such warrants or bonds to run for a period of not exceeding five (5) years; and to bear not exceeding six per centum per annum interest, and to be sold for not less than par; and such board shall annually levy sufficient taxes to pay at least one-fifth of such warrants or bonds, with interest, each year, and the trustee shall apply such annual tax to the payment of such warrants or bonds each year. In no event shall a debt of the township be created except by the advisory board of such township, and in the manner herein specified, and any payment of any debt not so authorized from the public funds of such township shall be recoverable upon the bond of the trustee, in a suit, which it is hereby made the duty of said board to institute and prosecute in the name of the state, for the use of said township. And said board is hereby empowered to appropriate, and the township trustee shall pay out of the township funds a reasonable sum for attorney's fees for such purpose. And if the board, on the written demand of a taxpayer, fails for thirty (30) days to bring suit, then such or any other taxpayer may bring the same, in the name of the state, for the use of the township.”

It is well known as a matter of public history that the enactment of the township reform law was inspired by the deplorable financial condition of many of the townships of the state; that the bill was prepared by eminent, disinterested lawyers with the view of correcting the evils in the financial management of the townships, and to enable those that were heavily in debt to retrench in their expenditures and to prevent further indebtedness. To this end no provision was made by which a township could incur any debt beyond its annual income, except in cases of emergency as provided in said section 6,...