Bailey v. Bd. of Com'rs of Clinton Cnty.

• Decision Date: 02 May 1924
• Docket Number: No. 11737.,11737.
• Citation: 81 Ind.App. 474,143 N.E. 690
• Parties: BAILEY et al. v. BOARD OF COM'RS OF CLINTON COUNTY et al.
• Court: Indiana Appellate Court

81 Ind.App. 474

143 N.E. 690

BAILEY et al.

v.BOARD OF COM'RS OF CLINTON COUNTY et al.

No. 11737.

Appellate Court of Indiana, Division No. 2.

May 2, 1924.

Appeal from Circuit Court, Carroll County; Benj. F. Carr, Judge.

Action by W. E. Bailey and others against the Board of Commissioners of Clinton County and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Superseding former opinion, 142 N. E. 655.

Combs & Laymon, of Frankfort, for appellants.

Thos. M. Ryan, of Frankfort, for appellees.

NICHOLS, J.

This is an action by appellants against appellees to enjoin appellees from issuing and selling gravel road bonds for the construction of a gravel road. The only error assigned is the action of the court in overruling appellants' motion for a new trial, which presents that the finding of the court is not sustained by sufficient evidence, and that it is contrary to law.

It appears by the evidence that in January, 1920, Frank Gossard and others filed with the board of commissioners of Clinton county an amended petition for a free gravel road in Johnson township, Clinton county, Ind., under the township unit law. Upon said amended petition said road was ordered established, and on the 3d day of May, 1922, the board of commissioners of said county entered an order in which it was determined to issue bonds for its construction, together with other roads, said bonds aggregating $20,600. Notice of such determination was duly published. Thereafter appellants and more than 50 other resident taxpayers of said township filed objections to said bond issue with the auditor of Clinton county, and said objections were certified by said auditor to the Indiana State Board of Tax Commissioners.

On June 17, 1922, pursuant to proper notice by the Indiana State Board of Tax Commissioners, a hearing was had by said board upon said objections to determine whether or not such bonds should be approved and issued. After hearing all parties concerned, on June 26, 1922, the board entered an order that the bonds be not approved. Thereafter the board of commissioners of Clinton county, on August 12, 1922, entered another order in said cause in which it was determined to issue bonds. Notice of such determination was duly given. Thereafter appellants and more than 50 resident taxpayers of said township filed objections to said proposed bond issue with the auditor of Clinton county, which were certified by said auditor to the state tax board. Thereupon, after due notice, a day was set for hearing said objections, and said hearing was held on September 15, 1922. Appellants and other objectors appeared and objected to another hearing for the reason that the first bearing and order was final, but said tax board heard the parties and thereupon entered an order that said bond issue be approved.

Appellants contend that the decision of the State Board of Tax Commissioners made June 26, 1922, against the issue of the bonds in question, was final, and that the board of county commissioners had no authority to enter the order of August 12, 1922, again determining to issue such bonds.

In O'Connor v. Board (Ind.) 142 N. E. 858, it is held by the Supreme Court that, where the board of commissioners has let a contract for the construction of a highway under the County Unit Act (Acts 1919, c. 112), and determined to issue bonds under Acts 1919, c. 59, § 201 as amended in the special session of 1920 (Acts 1920, p. 171), and by Acts 1921, p. 643), and the State Board of Tax Commissioners on petition disapproved the issuance of the bonds, such board of commissioners have authority to receive bids for the reletting of the work, and it follows, of course, to let a new contract and to again determine to issue bonds.

[1] There is no averment in the complaint in this case that preliminary to the entry of the order of August 12, 1922, again determining to issue bonds, bids were not received and a new contract let. The only averment in the complaint is that the order of the board in determining to issue bonds was without right or authority; but this is but the...