Bd. of Com'rs of Monroe Cnty. v. Conner

• Citation: 58 N.E. 828, 155 Ind. 484
• Case Date: November 27, 1900
• Court: Supreme Court of Indiana

155 Ind. 484
58 N.E. 828

BOARD OF COM'RS OF MONROE COUNTY
v.
CONNER.

Supreme Court of Indiana.

Nov. 27, 1900.

Appeal from circuit court, Monroe county; William H. Martin, Judge.

Bill for an injunction by Abner Conner against the board of commissioners of Monroe county. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Henley & Wilson, for appellant, Miers & Coor and Duncan & Batman, for appellee.

MONKS, J.

This is an appeal from a judgment enjoining appellant from letting a contract for the construction of two free gravel roads in Bean Blossom township, under the provisions of sections 6924-6934, Burns' Rev. St. 1894 (Acts 1893, p. 196), as amended by the act of 1895 (sections 6924-6933, Burns' Supp. Rev. St. 1897; Acts 1895, p. 143). The errors assigned call in question the sufficiency of the complaint.

It appears from the complaint that appellee was, at the commencement of the action, a voter and taxpayer of the township in which the free gravel roads were about to be constructed. The following reasons were alleged why appellant should be enjoined: “First. The inspector of said election at precinct No. 1 was ineligible to serve as such, because a large claim for damages had been allowed him by the reviewers of said road, and he was thereby interested in the result of said election. Second. Because Edward O. Wampler, one of the judges of the election at precinct No. 1, was neither a freeholder nor a householder. Third. The election officers at said precinct fraudulently counted, in favor of the building and improvement of each of said roads, forty votes which were legally cast against the building and improvement thereof, thereby changing an actual majority of the legal votes cast at said election against the building and improvement of each of said roads to an apparent majority in favor of the building and improvement thereof; that said election officers in said precinct fraudulently failed to count a large number of legal votes which were cast against the construction of each of said roads as cast; that a majority of the legal voters in said township at said election voted against the building and construction of each of said roads, but the election officers in said precinct No. 1 fraudulently returned said votes, and changed the returns of said election so as to show an apparent majority in favor of the building of each of said roads, which said result was certified to the board of commissioners of said county.”

The act of 1893 (Acts 1893, p. 196; being sections 6924-6934, Burns' Rev. St. 1894), as amended by the act of 1895 (Acts 1895, p. 143; being sections 6924-6933, Burns' Supp. Rev. St. 1897), provides for the construction of free gravel roads on the petition of 50 freeholders, citizens of the township or townships where the roads proposed to be constructed are located; the question to be submitted to the voters of said township or townships at an election to be called by the board of commissioners of the county. Appellee brought this action to enjoin appellant from letting a contract for the construction of certain free gravel roads under the provisions of said act of 1893 as amended in 1895. The settled rule in this state is that a person is not entitled to relief by injunction or writ of mandamus, if there is another adequate remedy. Board v. Dickinson, 153 Ind. 682, 686, 53 N. E. 929, and cases cited; State v. Real-Estate Building & Loan Ass'n, 151 Ind. 502, 503, 51 N. E. 1061, and cases cited. If, therefore, there was another adequate remedy for the grievances alleged in the complaint, the court erred in overruling the demurrer thereto. The first section of said act (section 6924, Burns' Supp. Rev. St. 1897; Acts 1895, p 143) provides that “the vote on said question shall be certified by the proper officers of said election to the board of commissioners of the county, and if at said election a majority

[58 N.E. 829]

of those voters (voting) on said question, are in favor of building such road or roads, the commissioners shall at once proceed to the construction of the same, but not otherwise.” The act of 1889 (Acts 1889, p. 276), being sections 6953-6959, Burns' Rev. St. 1894, provides for the purchase of toll roads, on petition of 50 freeholders, citizens of the township or townships where said toll road is located; the question to be determined by the voters of said township or townships at an election to be called by the board of commissioners of the county. It is provided in the first section of said act of 1889, being section 6953, supra: “The vote on said question shall be certified by the proper officers of said election to the county commissioners, and if at any such election a majority of those voting on said question are in favor of said purchase, the commissioners shall make said purchase, but not otherwise.” We find, on examination of said act of 1889, and the act of 1893, and the amendment of 1895, that they are substantially the same, except that the first-named act provides for the purchase of toll roads, while the last-named act provides for the construction of free gravel roads. It is evident that the provisions of the acts of 1893 and 1895, concerning the taxing district, the petition, notice of election, election, issuance of bonds, and levy of taxes to pay the bonds, and the powers of the board of commissioners, and all other essential provisions, are copied from said act of 1889.

In Gilson v. Board, 128 Ind. 65, 27 N. E. 235, 11 L. R. A. 835, the appellant, a resident taxpayer of the township in which the toll road was located, commenced an action to enjoin the board of commissioners from levying a tax, as provided in section 5 of said act of 1889, to pay the principal and interest of the bonds issued by the board of commissioners under section 3 of said act, in payment for the toll road purchased under the provisions of said act of 1889. The court said: “The statute before us confers upon the board of commissioners of the county exclusive jurisdiction to receive and pass upon the sufficiency of the petition, the sufficiency of the report made by the persons appointed to ascertain the consideration to be paid for toll roads, the sufficiency of the notice of election, and the result of the election. In passing upon these questions, the board of commissioners acts in a judicial capacity. These matters must all be passed upon by the board before the order for the purchase of the toll road is entered. When the order for the purchase of the road is made, these questions are therefore conclusively adjudicated. Objections to the petition, notice, appraisement, or regularity of the election must be made, if made at all, before the final order for the purchase of the road is entered by the board of commissioners. Jackson v. State, 104 Ind. 516, 3 N. E. 863;Peters v. Griffee, 108 Ind. 121, 8 N. E. 727;McMullen v. State, 105 Ind. 334, 4 N. E. 903;Young v. Sellers, 106 Ind. 101, 5 N. E. 686;Million v. Board, 89 Ind. 5;Dewey v. State, 91 Ind. 173;Stoddard v. Johnson, 75 Ind. 20;Osborn v. Sutton, 108 Ind. 443, 9 N. E. 410;Ely v. Board, 112 Ind. 361, 14 N. E. 236;White v. Fleming, 114 Ind. 560, 16 N. E. 487;Strieb v. Cox, 111 Ind. 299, 12 N. E. 481;Black v. Thomson, 107 Ind. 162, 7 N. E. 184;Hobbs v. Board, 116 Ind. 376, 19 N. E. 186;Board v. Hall, 70 Ind. 469;Reynolds v. Faris, 80 Ind. 14;Hilton v. Mason, 92 Ind. 157;Hill v. Probst, 120 Ind. 528, 22 N. E. 664;Loesnitz v. Seelinger, 127 Ind. 422, 25 N. E. 1037, 26 N. E. 887. Under the authorities above cited, it must be held that the questions involving the sufficiency of the petition, the regularity of the report of those appointed to appraise the road, the sufficiency of the notice of election, and the regularity and result of such election, are questions which were adjudicated by the board of commissioners of Rush county before entering an order for the purchase of the toll road named in the complaint, and, having been so adjudicated by that tribunal, they are not subject to an investigation in a collateral proceeding like this.” In State v. Board of Com'rs of Tippecanoe Co., 131 Ind. 90, 30 N. E. 892, appellant brought an action to compel appellee, by mandamus, to complete the purchase of a toll...