Bd. of Com'rs of Jackson Cnty. v. State ex rel. Brown

• Decision Date: 22 April 1897
• Citation: 46 N.E. 908,147 Ind. 476
• Parties: BOARD OF COM'RS OF JACKSON COUNTY et al. v. STATE ex rel. BROWN et al.
• Court: Indiana Supreme Court

147 Ind. 476

46 N.E. 908

BOARD OF COM'RS OF JACKSON COUNTY et al.

v. STATE ex rel.BROWN et al.¹

Supreme Court of Indiana.

April 22, 1897.

Appeal from circuit court, Scott county; Williard New, Judge.

Application by the state, on the relation of Elias D. Brown and another, for a writ of mandamus against the board of commissioners of Jackson county and others. Writ granted, and defendants appeal. Affirmed.

Miller, Winter & Elam, Burrell & Brannaman, D. A. Kockenour, and Eugene Hought, for appellants. Jason B. Brown, Elliott & Elliott, W. K. Marshall, Jewett & Shea, O. H. Montgomery, and Willard Robertson, for appellees.

JORDAN, C. J.

This action was instituted in the Jackson circuit court by the state, on the relation of relators, Brown and Mills, for a writ of mandate against the board of commissioners of Jackson county, and the other appellants as members thereof, to compel them to order a special election to enable the voters of said county to determine whether the county seat of Jackson county should be changed from Brownstown to Seymour. The action is based upon an act of the legislature entitled “An act providing for the relocation of county seats in counties having an area of more than five hundred square miles,” etc., passed March 9, 1895 (Acts 1895, p. 217). Upon application the cause was venued to the Scott circuit court. Appellants, after demurring to the complaint upon the ground of insufficiency of facts, filed an answer in one paragraph, wherein they alleged that the copy of the record attached to the affidavit of the auditor of state, alleged in the complaint to have been filed with the petition presented to the board of commissioners, failed to show the number of square miles in Jackson county, and also failed to show that the number of square miles in said county was 508, and, further, that it fails to show anything as to the number of square miles in said county. Appellees replied to this answer by a denial, and upon the issues joined a trial by the court resulted in a peremptory writ of mandate being awarded against appellants, as prayed for in the complaint. The errors assigned and relied upon for a reversal of the judgment are based upon the action of the court in overruling the demurrer to the complaint, and in denying appellants' motion for a new trial. The complaint, among other things, substantially alleges: That the relators, Brown and Mills, are and have been freeholders and legal voters of Jackson county for five years last past, and signed the petition for the removal of said county seat presented to the board on the 3d day of June, 1895. That the individual defendants were members of the board of commissioners of said county. That on the 3d day of June said board was convened in regular session, and the petition for the removal of said county seat was presented, signed by the relators and 62 other freeholders and legal voters of the county, setting forth the following facts: (1) That the county of Jackson contains an area of more than 500 square miles, being 510 square miles, as shown by the record in the office of the auditor of state; (2) that each of the petitioners is a freeholder and legal voter of the county of Jackson; (3) that they all desire a removal of the county seat from Brownstown to Seymour; (4) that they desire an election to be held to determine that question. That attached to the petition so presented was the affidavit of Ephraim Ahlbrand, deposing that he is a freeholder of Jackson county, Ind.; that the persons who signed the petition for the removal of the county seat to which the affidavit is attached are freeholders and legal voters of said county; and that the names attached to the petition are as in said complaint set forth. That said petitioners at the same time and place filed with their petition the affidavit of the auditor of state of Indiana, containing a copy of the record in his office, showing the number of square miles in said county, and that the number of square miles in said county was 508; that certain of the petitioners had executed and filed a bond, payable to the treasurer of the county, in the sum of $1,000, conditioned for the payment of the expenses of the election, etc., which bond had been approved by the treasurer. That said board received the petition, affidavit, and bond, and caused the same to be entered upon its records, but did not cause the affidavit of the auditor of state to be entered at full length upon its records. That said board refused to make an order for any special election as required by the statute, but did make and enter of record an order refusing the said petition and dismissing the same. The complaint then alleges that under the statute of March 9, 1895, it was the imperative duty of the board of commissioners to order such election, and that the commissioners had refused to perform such duty, and that, unless compelled to by order of the court, they will not perform such duty. Prayer for an alternative writ of mandate, requiring the board and the members thereof to make and enter an order for such election, and that upon the final hearing a peremptory writ of mandate issue. Upon the filing of this complaint an appearance for the defendants was entered, and the issue of an alternative writ of mandate was waived.

The contentions of appellants' learned counsel why the complaint is insufficient to entitle appellees to the relief demanded, briefly stated, are as follows: That the act of March 9, 1895, supra, is special and local, and falls within the prohibition of section 22, art. 4, of the constitution of this state, and is therefore void. That it violates said section 22 in details; that is to say, it is in conflict with the following specifications of this section: No. 3, in regard to practice in courts of justice; No. 10, in regard to county and township business; No. 12, relative to the assessment and collection of taxes for county and township purposes. That it conflicts with section 1, art. 3, of the constitution, for the reason that it imposes administrative duties on the judge of the circuit court. The statute is also assailed as being violative of other constitutional provisions, to which we will hereafter refer.

The first section of the act in controversy provides: “That at any regular session of the board of commissioners of any county in this state, having an area of more than five hundred square miles, fifty or more freeholders and legal voters of said county may present to said board of commissioners a petition in writing setting forth the following facts: (1) The number of square miles the county mentioned in the petition contains, as shown by the record thereof on file in the office of the auditor of state. (2) That said petitioners are freeholders and legal voters of said county. (3) That said petitioners desire the removal of the county seat of said county from the place where it is located and that it be located at another place in said county. (4) The name of the city or town within the corporate limits of which said petitioners desire said county seat to be located. (5) That said petitioners desire an election to be held for the purpose of determining whether or not said county seat shall be relocated.” It is further provided that there shall be attached to the petition an affidavit of one or more freeholders of such county, stating that the persons who sign the petition are freeholders and legal voters of such county, and that such affidavit shall be conclusive evidence of the facts therein stated; also, “the affidavit of the auditor of state, containing a copy of the record in his office, showing the number of square miles the county mentioned in the petition contains; which affidavit shall be conclusive evidence of the facts therein stated.” Section 2 requires the filing of a bond by the petitioners, or some of them, payable to the treasurer of the county, in the penalty of $1,000, with freehold surety to the approval of the treasurer, conditioned for the payment of expenses occasioned by the election. Section 3 requires that upon the filing of the petition and bond the board shall cause the same to be entered at full length upon their records, and within three days thereafter shall make an order for a special election in the various precincts in the county for the purpose of determining whether the county seat shall be relocated as prayed. The remainder of section 3, with sections 4, 5, 6, 7, 8, and 9, provide the details and regulations of such election. Section 5, in part, provides that if, in any precinct, the sentiment is so unanimous in favor of or against relocation that competent judges and clerks cannot be found therein, then persons competent to serve as such may be selected from other precincts, and the right to vote is given to such persons in the precincts where they serve as such election officers. Section 10 provides for an appraisement of the value of the courthouse and jail at the present county seat. Section 11 provides for the order to be made by the board of commissioners in the event said special election shall result in the voters of the county having voted, by a vote of three-fifths or more of the votes cast at the election, in favor of the relocation of the county seat, and also that the voters of the township in which it is proposed to relocate the county seat shall have, by a three-fifths vote or more, voted in favor of such relocation. Section 12 requires the petitioners to procure a deed of conveyance of an acre of land for the courthouse, and a quarter of an acre contiguous for the jail, and also plans and specifications for the erection of such courthouse and jail, and deliver the same to the judge of the circuit court of the county. It further provides that the title to said sites, and the plans and specifications for said courthouse and jail, shall be submitted to the judge of the circuit court, and, if he finds the same satisfactory, h...