Bettenbrook v. Miller

• Citation: 112 N.E. 771,185 Ind. 600
• Decision Date: 12 May 1916
• Docket Number: No. 22901.,22901.
• Parties: BETTENBROOK et al. v. MILLER et al.
• Court: Supreme Court of Indiana

185 Ind. 600

112 N.E. 771

BETTENBROOK et al.

v.MILLER et al.

No. 22901.

Supreme Court of Indiana.

May 12, 1916.

Appeal from Circuit Court, Jackson County; John H. Edwards, Special Judge.

Petition by Fred E. Miller and others for highway improvement; John H. Bettenbrock and others appearing and answering. From a judgment after demurrer was sustained to the answer, defendants appeal. Affirmed.Montgomery & Montgomery, of Seymour, for appellants. E. P. Elsner, of Seymour, and Kochenour & Prince, of Brownstown, for appellees.

LAIRY, J.

At the February term of the board of commissioners of Jackson county, appellees presented a petition for the improvement of a highway in Jackson township, alleging that the proposed improvement was less than three miles in length and that more than 50 of the signers of the petition were freeholders and voters of said township. An engineer and viewers were appointed, who afterward filed a report finding that the work proposed was one of public utility, and recommending that it be done according to the plans and specifications embodied in the report. The report provided that the highway should be improved by paving the same to a width of 16 feet with concrete at an expense of $28,263.26.

After this report was filed, appellants appeared before the board of commissioners at the August term and filed an answer, in which it was averred in substance that the portion of the highway sought to be improved by this proceeding had been graded, graveled, and improved at the expense of the taxpayers of Jackson township prior to the filing of the petition in this proceeding, and that such prior improvement was made underan order of the board of commissioners of Jackson county on petition of the voters, and after an election to determine the will of the people as to such improvement had been held by the voters of that township. It was further alleged that the former improvement was completed and accepted by the board of commissioners of the county before the petition in this proceeding was filed, and that it then became and still was a part of the free gravel road system of Jackson county, which the law requires shall be kept in repair by the entire county by means of a tax to be levied for that purpose.

Appellees filed a demurrer to this answer, which the board of commissioners sustained, after which judgment was entered, ordering the improvement constructed as proposed. On appeal to the circuit court the demurrer to this answer was again presented and sustained, upon which appellants elected to stand on their answer, and judgment was rendered in favor of appellees.

[1][2][3][4][5] It is the position of appellants that the board of commissioners of a county had no power or authority under the statute, prior to the taking effect of the act of 1915, to entertain any petition or to make any order for the second or other subsequent improvement of a highway which had already been improved as a free gravel road under the statute of the state. Appellants assert that, once a road is improved and accepted as a part of the free gravel road system of the county, it must be maintained at the expense of the taxpayers of the entire county as provided by the statutes on the subject of the repair of free gravel roads, and that for this reason the statute did not contemplate that such a road should be repaired, resurfaced, or reimproved at the sole expense of the taxpayers of the township in which it is located. A distinction must be observed, however, between the repair of a public improvement of this kind and a reconstruction. If it were the purpose of this proceeding to restore the road to its original grades and specifications by the use of the same material with which it was originally improved, the work so contemplated might be properly regarded as repair; but this proceeding contemplates a reimprovement of the highway with material entirely different from that used in the original improvement. Such a road could not be properly made at the expense of the entire county under the guise of repairs. Resurfacing a highway with a different material is not a repair, but a reconstruction. Elliott on Roads and Streets (3d Ed.) 577. The power of a city to improve its streets at the expense of abutting property is not exhausted by a single exercise of such power; but it is a continuing power, which may be exercised as often as necessity requires. City of Kokomo v. Mahon, 100 Ind. 242; Elliott on Roads and Streets, § 460.

The power to improve highways, by draining, grading, and paving with stone, gravel, or other road-paving material, was conferred on boards of commissioners of the several counties by section 62 of an act concerning highways, approved March 8, 1905 (Acts of 1905, page 521; Burns 1914, § 7711a). The power thus granted extended to any new highway, or to any highway already established, and by other sections of the act provisions were made for paying the cost of such improvements by the levy of a tax against the property of the township in which the improvement was made. In the absence of anything to indicate an intention to the contrary, there could be little doubt that the power thus conferred was intended to be a continuing one, which could be exercised as often as necessity might require. In the case of Evans v. West (1894) 138 Ind. 621, 38 N. E. 65, it was said:

“A public drain may be established over the line of another drain. Meranda v. Spurlin, 100 Ind. 380;Denton v. Thompson, 136 Ind. 446 . And no sufficient reason has been given why a gravel road may not be treated in like manner.”

This language was used in the decision of a case involving the construction of a free gravel road under section 6855, Burns 1894, which covered a part of a highway previously improved. The powers conferred by section 62 of the act of 1905 were clearly sufficient to authorize a second or subsequent improvement of a highway under the provisions of that act, but the power was not granted in express terms. The Legislature of 1913 attempted to amend this section by an act approved March 14th of that year, by which act power to reimprove highways was expressly granted (Acts 1913, page 690); but this act was held ineffective for the reason that an act with an emergency clause approved one day later, which also amended the same section, became effective before the act approved on March 14th. Metsker v. Whitsell, 181 Ind. 126, 103 N. E. 1078. In 1915, section 1 of the act approved March 15, 1913, was so amended as to grant express power to boards of commissioners to reimprove highways under the provisions of the act. Appellant claims that this subsequent legislation amounted to a recognition on the part of the General Assembly that the power subsequently conferred was not granted by section 62 of the act of 1905. and the court is urged to adopt this construction.

[6][7] A construction of a statute by the Legislature, if clearly indicated by subsequent enactments, whether valid or not, will be given consideration by the courts. 36 Cyc. 1142. If, however, such subsequent expressions are not so clear and unequivocal as to leave the legislative construction free from doubt, it will be given little effect. State v. Lancashire & Co., 66 Ark. 466, 51 S. W. 633, 45 L. R. A. 348.

[8][9][10][11][12][13] It may be that the Legislature of 1913, in its attempt to so amend the act as to clearly and expressly grant the power to reimprove highways, acted on the assumption that such power was not conferred by the former statute, and that the Legislature of 1915 acted on the same assumption when it amended the act approved March 15, 1913, in such a way as to clearly confer the power to reconstruct highways under the provisions of the statute of which this section forms a part. It is equally probable, however, that these amendments were introduced and passed, not upon the supposition that the power in question was not conferred by the statutes formerly passed, but for the purpose of removing any doubt which might arise as to the existence of such power. Prior to the amendments mentioned the statute was open to construction in this respect, and it had not been construed by this court. The Legislature probably intended to make certain by express enactment what might otherwise be doubtful. Village of Morgan Park v. Knopf, 210 Ill. 453, 71 N. E. 340. However this may be, it must still be borne in mind that the meaning of a statute must be gathered from...