Bennett v. Spencer County Bridge Com'n

• Decision Date: 11 March 1938
• Docket Number: 27033.
• Citation: 13 N.E.2d 547,213 Ind. 520
• Parties: BENNETT v. SPENCER COUNTY BRIDGE COMMISSION et al.
• Court: Indiana Supreme Court

13 N.E.2d 547

213 Ind. 520

BENNETT v. SPENCER COUNTY BRIDGE COMMISSION et al.

No. 27033.

Supreme Court of Indiana

March 11, 1938

Appeal from Spencer Circuit Court; O. C. Miner, Judge.

Paul F. Mason and Ralph E. Roberts, both of Rockport, for appellant.

L N. Savage, of Rockport, for appellees.

FANSLER Judge.

The appellant brought this action on behalf of himself and all other taxpayers of Spencer county, seeking to enjoin the performance of a contract for the issuance and sale of bonds to secure money with which to construct a bridge over the Ohio River, connecting Spencer county with the State of Kentucky, and seeking to enjoin the board of county commissioners of Spencer county from paying any money to the Spencer county bridge commission, to reimburse the commission for expenses incurred in the operation and maintenance of a bridge built, in the event the tolls collected from traffic should not be sufficient to pay operation and maintenance expenses after the payment of sinking fund requirements for the retirement of bonds proposed to be issued.

A demurrer to the complaint was sustained, which ruling is the basis of the only error assigned.

The complaint alleges that the defendants who are appellees other than Bitting, Jones & Company, Incorporated, were proceeding under chapter 114, page 332, of the Acts of 1929, as amended by chapter 141 of the Acts of 1937 p. 796, and had entered into an agreement with the defendant, appellee Bitting, Jones & Company, Incorporated, for the issuing of bonds in the manner provided for by the statute, for the purpose of providing funds with which to pay for the construction of a bridge over the Ohio River; that, by the terms of the contract, it was agreed that the bonds should contain a provision that, until the bonds were paid, the bridge commission of Spencer county should operate and maintain the bridge from the funds received from the traffic on the bridge, as a part of the highway system of the county; that, in the event the tolls in any year should be insufficient to provide for the sinking fund requirements, together with the cost of operating and maintaining the bridge, the bridge commissioners should be reimbursed, from the funds of the county available for use in the construction, maintenance, and operation of public highways, for any expenditure made for the operation and maintenance of the bridge, for which funds are not available from tolls from traffic. This provision of the contract follows the statute on the subject. The act in question is entitled: 'An Act to enable counties to construct, operate and maintain bridges across rivers and streams so as to connect such counties with an adjoining state; providing for a commission in such county to construct, operate, control and maintain such bridges and fixing the power and duties of such commission and providing for the issuance of bridge revenue bonds of such county to pay the costs thereof, payable solely through bridge tolls without incurring of indebtedness of such county.' Acts 1929, c. 114, p. 332. The act applies to any county which borders on any river which forms a boundary line between this state and an adjoining state. It provides for the initiation of the proceedings for the construction of a bridge by the county commissioners; the appointment of five persons to constitute a bridge commission; the commissioners to serve for four years; successors to be appointed by the county commissioners; the commissioners to serve without pay; that 'the persons appointed as provided herein shall constitute a body corporate,' section 2, as amended by Acts 1937, c. 141, § 2, with power to contract and be contracted with, to sue and be sued, and with power to make all contracts and agreements necessary or incidental to the performance of its duties and the execution of its powers. The commission is empowered to prepare plans, select locations, and determine the type and manner of construction of the bridges contemplated by the act, and to build and equip, operate, manage, and control such bridges. It is provided that the counties may not incur indebtedness of any kind or nature for the purpose of constructing a bridge under the act, but it is provided that the counties may procure funds by the issuance of bonds, the principal and interest of which are to be payable solely from the revenue derived from tolls exacted for the use of the bridge. It is provided that the receipts from the tolls, after provision for current retirements and interest on bonds, shall be used in payment of the expense of maintaining, repairing, and operating the bridge; but that, in the event there are insufficient funds for maintenance and operation expenses, after payment of bond requirements, the bridge commission shall be reimbursed from the funds of the county 'available for use in the construction, maintenance and operation of public highways,' Acts 1929, c. 114, § 11, as amended by Acts 1937, c. 141, § 6, for any expenditures made for the operation and maintenance of the bridge, for the payment of which funds are not available from tolls from traffic. It is provided that, when all of the bonds have been retired and paid, the bridge shall become the property of the State of Indiana and a part of the Indiana State Highway System, to be maintained by the state.

It is contended by appellant that the ace is unconstitutional, and in conflict with section 23 of article 4, section 19 of article 4, and section 1 of article 13, of the Constitution of...