Bd. of Com'rs of Montgomery Co. v. Fullen

• Decision Date: 27 May 1887
• Citation: 111 Ind. 410,12 N.E. 298
• Parties: Board of Com'rs of Montgomery Co. v. Fullen and others.
• Court: Indiana Supreme Court

111 Ind. 410

12 N.E. 298

Board of Com'rs of Montgomery Co.

v.Fullen and others.¹

Supreme Court of Indiana.

May 27, 1887.

Appeal from circuit court, Montgomery county.J. H. Burford, Paul & Humphries, Benjamin & Crane, and Thompson & West, for appellant. Wright & Sellers and Kennedy & Kennedy, for appellees.

Elliott, J.

In the case of Robinson v. Rippey, ante, 141, we held, after a very full examination of the question, that the act of April 8, 1885, entitled “An act concerning gravel and macadamized roads,” did not repeal the former acts covering that subject, and that decision disposes of one of the important questions in this case. As the act of 1877 was not repealed, assessments and proceedings under it are not affected by the later statute, and the authority conferred upon the board of commissioners by the act of 1877 still exists. The questions in this case not disposed of by the decision in Robinson v. Rippey are these: First, has the board of commissioners authority to make an additional assessment to pay the cost of the improvement in case the original assessment proves insufficient? Second, can the board of commissioners of its own motion, and without a petition, direct the levying of an additional assessment? Third, can the board itself determine the additional amount to be assessed against the land-owners, respectively, or must it refer the matter to the viewers, as in the first instance, to determine and report the amount to be assessed as benefits? Of these questions in their order.

1. The purpose of the legislature, in the enactment of our gravel-road laws, is very plainly apparent, for it appears everywhere throughout the statutes, in their express provisions, in their general scope, and in the character of the machinery provided for carrying the law into effect. It is impossible to mistake the purpose of the legislature, for nothing can be clearer than that it was the intention to make the land benefited by the improvement bear the expense. It was not intended that the expense should be paid out of the county treasury in any event, but that it should in all cases be paid by those who received a special benefit. This intention it is the duty of the courts to carry into effect if it can be done without doing violence to the language employed by the legislature.

It is a familiar rule that the grant of a principal power carries, by a necessary implication, all incidental powers essential to the effectual exercise of the principal power. In this case the principal power granted is to improve highways at the cost of adjacent land-owners, and all incidental powers necessary to the exercise of this principal power are vested in the tribunal to which it is granted. If all the expense must be paid by the property benefited, and the board of commissioners are clothed with the power to compel the property to bear that burden, then it must possess the means of effectively exercising that power. It would be idle to declare that the board has power to compel the property to pay the cost of improving the highway, and yet deny it the means of effectively exercising that power. Once it is granted that the law charges the entire expense of improving the highway upon those specially benefited, it must follow that it possesses the incidental power to put and continue in motion the machinery by means of which the power is executed. It is important to keep constantly in mind that the law requires that the entire cost shall be collected from the property-owners; for it was not intended that in any event, nor upon any possible contingency, should the cost be paid out of the county treasury. As the clear intention of the legislature was that the whole expense of the improvement should be paid by the property benefited, it must follow that the power to carry into effect the intention of the legislature is a continuing one, and that it is not exhausted by its exercise in the first instance. There are many cases in which a power will be deemed a continuing one without any express declaration to that effect. Macy v. City, 17 Ind. 267;Welch v. Bowen, 103 Ind. 252, 2 N. E. Rep. 722; Goszler v. Corporation of Georgetown, 6 Wheat. 593. It seems to us that the power of the commissioners to assess the entire cost of the improvement upon the property must be deemed a continuing one; since, if it be held otherwise, there are cases in which the leading and manifest purpose of the legislature cannot be carried into effect. If it be true, as surely it is, that the purpose was to make the property bear the whole expense, then it must also be true that there is a power lodged somewhere, to execute this purpose. The one proposition necessarily leads to the establishment of the other. Again, if it be true that there is a power to carry the clearly manifested legislative purpose into execution, then it must also be true that the power to make an additional assessment exists in all cases where it is necessary to effectively execute that purpose.

The construction of a free turnpike or gravel road is not, in a legal sense, a county matter; for the commissioners do not levy assessments by virtue of their position as the official representatives of the county, but by virtue of an express statute specially conferring that power upon them. They are not, at least so far as the property owners are concerned, acting as the agents of the county while exercising the powers conferred by the statute, and it is legally impossible to conceive any valid reason why the county should sustain any loss because of their errors, negligence, or wrongs. If they are not the agents of the county, then loss ought not in any event to fall upon the county, and the only way in which to prevent this is to hold that an additional assessment may be made when the first proves insufficient. The position occupied by the board of commissioners is very similar to that occupied by a common council of a municipal corporation in levying assessments for street improvements, and it is settled that in such cases there is no liability on the part of the corporation for the errors or negligence of its officers, but that the property is alone liable for the cost of the improvement. City v. Sweeney, 13 Ind. 245;Johnson v. Common Council, 16 Ind. 227;City v. Allen, 43 Ind. 347;Wren v. City, 96 Ind. 206-216. The principle asserted in the cases cited applies here; for they proceed on the theory that, in making the assessment, the common council is not acting as the agent of the city.

In the case before us the commissioners must have authority to make an additional assessment, or part of the expense of improving the highway must fall upon the county; for bonds were issued under the provisions of section 5097 of the statutes, and those bonds impose an obligation upon the county which at least requires the commissioners to make an additional assessment to pay them. It is very clear that it was not intended that the bonds issued by the commissioners should be the general debt of the county, but that they should be paid out of the assessments levied upon the property benefited by the improvement. The assessment constitutes a specific fund out of which the bonds must be paid, for there is no authority to charge them upon any other fund, nor to make them a general charge upon the county. If the first assessment does not yield enough to do the work and pay the bonds, then the commissioners must have authority to levy an additional assessment, or the loss will fall upon the county; and this is the very thing the legislature intended to prevent. Either there must exist authority...