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

Decision Date14 May 1886
Citation106 Ind. 517,6 N.E. 915
PartiesBoard of Com'rs of Knox Co. v. Montgomery.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Daviess circuit court.

Cullop, Shaw & Kessinger, for appellant.

Reily & Niblack and De Wolf & Chambers, for appellee.

Elliott, J.

The appellee filed a petition before the board of commissioners of Knox county, alleging that at the March session, 1883, of that body, a petition of more than 25 freeholders of Vincennes township was presented, praying that an appropriation of $90,000 be made to aid the Vincennes & Ohio River Railroad Company in the construction of its road; that at an election held according to law the voters of the township voted in favor of making the appropriation; that at the June session, 1883, the election returns were canvassed, and it was adjudged by the board that a majority of the votes were cast in favor of the appropriation; that the board failed to levy the tax; and that the petitioner is a citizen and tax-payer of Vincennes township. Prayer that the board be required to levy a tax, and cause it to be placed upon the duplicate. A decision was made upon the petition, against the petitioner, and he appealed to the circuit court.

One of the positions assumed by the appellant's counsel is that the appellee did not pursue the appropriate remedy. The ground upon which this position is placed is that the appropriate remedy in such a case as this is mandamus. We cannot yield to the contention that mandamus is the exclusive remedy. In at least two cases we have recognized the doctrine that the case may first be presented to the board of commissioners, and that in the event of an adverse decision an appeal will lie. Board, etc., v. Karp, 90 Ind. 236;Gavin v. Board, etc., 81 Ind. 480. These decisions are in harmony with those which declare that the board of commissioners is in many cases to be regarded as a court, and its decisions as judicial judgments, from which an appeal will lie to the circuit court. Grusenmeyer v. City of Logansport, 76 Ind. 549;City of Logansport v. LaRose, 99 Ind. 117;Town of Cicero v. Williamson, 91 Ind. 541;Rutherford v. Davis, 95 Ind. 245. It has been often held that where a case is presented invoking a judicial decision by the board, that its decision cannot be collaterally impeached, but can only be successfully atacked by appeal. State v. Board, etc., 101 Ind. 69;Board, etc., v. Maxwell, Id. 268; Board, etc., v. Gregory, 42 Ind. 32;Pfaff v. State, 94 Ind. 529.

In this instance the complaint or petition filed by the appellee invoked the exercise of judicial power, and we can perceive no valid reasonwhy the appellee could not appeal from the decision against him. Nor do we perceive any reason why the remedy adopted is not an appropriate one. It gives the board full opportunity to examine the case presented, without being first subjected to the annoyance of an action in the circuit court; and the liberal right of appeal conferred by law secures to all interested parties an ample opportunity of obtaining a review of the decision of the board. It is true that it has been held that a party may resort to mandamus, instead of invoking the judicial powers of the board, but we do not think mandamus is to be regarded as the exclusive remedy. On the contrary, we think that the party has an election of remedies.

It is contended that, as the board was required to perform a duty specially enjoined upon it by law, that mandamus is the appropriate and exclusive remedy. The answer to this argument is that the tax-payer elected to call upon the board to exercise its judicial power, and did not ask it to exercise its ministerial functions. He chose to submit to its own decision, as a court, the question of his right to have an order directing the levy of the tax, and thus called upon it to make a judicial decision. Doubtless he might, in the first instance, have pursued such a course as would have entitled him to ask a mandate; but he was not bound to do so, as he had an election between two different methods of procedure, for he had a right to elect to demand that, as a ministerial act, the board should levy the tax, or he had a right to bring the matter before the board as a court, and obtain a judicial decision. He had choice of two modes of procedure, one of which would make it necessary to resort to a mandate, and the other, if adopted, as was done in this case, required him to appeal from the decision against him. Whether the remedy must be by mandate, therefore, depends upon the course pursued.

The proceedings before boards of commissioners respecting claims or demands against the county, or in which tax-payers are interested, are undoubtedly of a somewhat anomalous character; for the board occupies a dual position, as it stands as the representative of the county and its citizens, and also acts as a judicial tribunal, but, nevertheless, a party may, and in many cases must, submit his claims to its decision as a court. As the appellee did invoke the judicial power of the board, and did obtain its exercise, he cannot maintain a suit for a mandate. We understand it to be well settled that, where an inferior tribunal refuses to act, mandamus will lie; but where it does act, and does make a decision, the remedy is that of appeal. Board, etc., v. State, 82 Ind. 382;Baltimore, etc., Co. v. Board, etc., 73 Ind. 213; Wood, Mand. 20.

For the reason that the board delayed acting on the petition, and did not levy the tax until its June session, 1883, it is insisted that the taxpayer has no right to have the levy ordered. We cannot hold that the mere delay of the board to take action at the...

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