Bd. of Com'rs of Fountain Cnty. v. Bd. of Com'rs of Warren Cnty.

• Decision Date: 10 March 1891
• Citation: 27 N.E. 133,128 Ind. 295
• Parties: Board of Com'rs of Fountain County v. Board of Com'rs of Warren County.
• Court: Indiana Supreme Court

128 Ind. 295

27 N.E. 133

Board of Com'rs of Fountain County

v.Board of Com'rs of Warren County.¹

Supreme Court of Indiana.

March 10, 1891.

Appeal from circuit court, Montgomery county; E. C. Snyder, Judge.Thomas F. Davidson and H. H. Dochterman, for appellant. C. V. McAdams, for appellee.

Coffey, J.

This was an action by the appellant against the appellee to recover for money expended by the former in the purchase of a toll-bridge across the Wabash river, to recover for money expended in the construction of a bridge, and for money expended in the repair of a bridge. The complaint consists of three paragraphs. The material facts alleged in the first paragraph of the complaint are that the board of commissioners of Fountain county, in the year 1886, purchased a certain described toll-bridge across the Wabash river, near the city of Covington, part of which bridge, with its approaches, is in Fountain county, and another part in Warren county. The bridge was purchased for the purpose of making it free to the public, and the price paid was $18,000, all of which was paid by Fountain county. On the 11th day of June, 1886, the board of commissioners of Fountain county, when in regular session, found and entered of record that public utility and convenience required the purchase of said bridge and the approaches thereto from the then owners, and that the same should be made free and subject to the public use, without the payment of toll; and at the same time entered of record a resolution expressing and declaring its willingness to aid and join the board of commissioners of Warren county in the purchase of said bridge and approaches, and ordered on record that a certified copy of the finding and resolution should be made out and delivered to and served on the board of commissioners of Warren county. A certified copy of these proceedings was served upon and delivered to the board of commissioners of Warren county on the 15th day of the same month. The board of commissioners of Warren county neglecting and refusing to join in the purchase of the bridge, Fountain county purchased it on the 21st day of July, 1886, and dedicated it to the public use. This paragraph seeks to recover from the appellee a portion of the money paid by Fountain county for the bridge, and is drawn upon the theory that Warren county is liable to pay for the bridge a sum in the proportion its taxable property bears to the taxable property of Fountain county. It appears from the allegations in the second paragraph of the complaint that for a long time prior to the year 1886 the Attica Bridge company owned a toll-bridge across the Wabash river where the river forms the boundary between the counties of Fountain and Warren, at the city of Attica, in Fountain county. In the year 1886, the tollbridge was destroyed by a cyclone, and, the bridge company declining to rebuild the same, the board of commissioners of Fountain county purchased its interest in the abutments, piers, and approaches, and erected thereon an iron bridge at a cost of $45,000. This paragraph contains the same allegations as the first in relation to the findings, orders, resolutions, and notice to the board of commissioners of Warren county, and alleges that the board of commissioners of Warren county declined to take any action thereon, and declined to join with the board of commissioners of Fountain county in the purchase of said abutments, piers, and approaches, and in the erection of said bridge. This paragraph seeks to recover from Warren county its proportion of the said sum of $45,000. The third paragraph of the complaint alleges substantially that in the year 1886 there was, and still is, a public bridge across the Wabash river at the city of Covington, where said river forms the boundary line between the counties of Fountain and Warren; that said bridge was jointly owned and under the control and management of the board of commissioners of Fountain and Warren counties; that the same became so out of repair that it was dangerous to travelers; and, that, after the necessary findings, orders, resolutions, and notice to the board of commissioners of Warren county, the board of commissioners of Fountain county proceeded to and did repair the bridge at a cost of $1,600. This paragraph seeks to recover from Warren county its proportion of the costs of the repairs therein named. To each of these several paragraphs the court sustained a demurrer. The questions presented for our consideration relate to the propriety of this ruling.

The question presented by the demurrer to the first and second paragraphs of the complaint involves the power of the board of commissioners of Fountain county to impose upon the county of Warren the indebtedness described in said paragraphs without the consent of the latter county. The solution of the question depends upon the construction to be placed upon sections 2880-2884, Rev. St. 1881. It is contended by the appellant that the service of the notice described in the complaint upon the board of commissioners of Warren county had the force and effect of the service of an ordinary summons, and that the failure of such board to take action and join with the board of commissioners of Fountain county in the purchase of the bridge named in the first paragraph, and in the erection of the bridge named in the second paragraph, within 30 days from the service of such notice, conferred upon the latter board the power to purchase the first bridge and erect the second, and charge Warren county with its proportion of the expense incurred in such purchase and erection. The primary object in construing any statute is to arrive at the intention of the legislature which enacted the statute to be construed. In doing so we will look to the letter of the statute, to the statute as a whole, to the circumstances under which it was enacted, to the old law, if any, to the mischief to be remedied, and like matters. Hunt v. Railway Co., 112 Ind. 75, 13 N....