Board of Commissioners of Switzerland County v. Reeves

• Decision Date: 28 April 1897
• Docket Number: 18,096
• Parties: Board of Commissioners of Switzerland County v. Reeves et al
• Court: Indiana Supreme Court

46 N.E. 995

148 Ind. 467

Board of Commissioners of Switzerland County v. Reeves et al

No. 18,096

Supreme Court of Indiana

April 28, 1897

Rehearing Denied October 8, 1897.

From the Switzerland Circuit Court.

Reversed.

George S. Pleasants, C. S. Tandy and F. M. Griffith, for appellant.

W. R Johnston, for appellees.

OPINION

McCabe, J.

The appellees sued the appellant to enjoin it from issuing bonds to build certain gravel roads in York township in Switzerland county. The defendants answered in confession and avoidance leading to issues of fact. The trial court overruled a demurrer to the complaint for want of sufficient facts, and sustained such a demurrer to the answer; and the defendants declining to plead further, judgment was rendered awarding the relief prayed in the complaint on the ruling sustaining the demurrer to the answer. The only action of the trial court called in question by the assignment of errors, is as to its rulings on the demurrers above mentioned. The substance of the complaint is: That on the day of March 1896, William H. Scott and other citizens and freeholders of York township, in said county, filed their petition before said board, praying said board to grant an order to submit to the voters of said township the question of building three free gravel roads, which was granted on said day; and said board ordered a special election to be held in said township on April 28, 1896, on the question of building said three roads; that notice was given of said election as required by the statute approved March 7, 1895; that said election was held pursuant to said statute, order, and notice, to determine the question by the legal voters whether the said three gravel roads, which are described, should be built; that said election resulted in a majority of the legal voters of said township voting for the construction of said proposed three gravel roads; that there was no vote authorized or voted at said election upon the question of building any one, or any two of said roads; but the only question voted upon at said election was whether or not all three of said proposed roads should be built; that the taxable value of the entire taxable property within said York township, as ascertained by the assessment last prior to said election, was $ 417,000.00 and no more, which last assessment thereof was made for State and county taxation; that the indebtedness of said township immediately prior to said election exceeded, and now exceeds, the sum of $ 8,424.33; that the cost of building said proposed free gravel roads, will, according to the estimate made by the proper authority, exceed $ 20,000.00; that the estimate was made by three persons named, pursuant to the order of said board appointing and requiring them to make such estimate, upon the petition already mentioned; that if said free gravel roads are constructed, said township will thereby become indebted to an amount, in the aggregate, far exceeding two per centum of the value of taxable property within said township as ascertained by the last assessment for State and county taxes previous to the incurring of such indebtedness, contrary to article 13 of the constitution of Indiana; that the whole of the proceedings above mentioned have been and are conducted under and by virtue of the act of the General Assembly of this State, entitled "An act concerning the construction of free gravel, stone, or other macadamized roads," providing for their location, the manner of their construction, and providing for the payment of the same, and for their maintenance, and declaring an emergency, approved March 3, 1893, as amended by the act approved March 7, 1895, and by no other authority whatever; that one of said roads, if constructed, will run through the lands of eleven different owners named, a part of each of which tracts will be taken and appropriated for said proposed road by virtue of said act; but neither of the plaintiffs own any such lands; that said township is now indebted on account of bonds heretofore issued by said board for the building of other free gravel roads heretofore built, $ 6,520.00; debt against the special school fund, $ 184.60; debt against the township fund, $ 719.73. That said township has on hand the following sums of money belonging to the several funds, to-wit: Dog tax fund, $ 53.00; road fund, $ 339.46; special school fund, $ 516.11; township fund, $ 580.71; total $ 1,489.28. That there has been collected by the treasurer of said county the sum of $ 594.26, which is applicable to the payment of the bonds above mentioned; that there is no money on hand or to the credit of said township applicable to the payment of the indebtedness about to be created, said township having no money on hand whatever except as above stated; that the construction of the two roads which are advertised to be let to bidders on the 20th of the present month will, according to the estimate of the viewers, cost $ 11,238.23, and the other road named in said petition will according to said estimate cost $ 10,260.57, and said roads will cost as much as said estimate; that said board has not yet advertised for bids for the construction of the third road named in said petition, but has continued the same; that unless restrained, said board will, on the day advertised, receive bids and enter into contracts for the construction of said two roads, and will issue bonds of said county for the purpose of raising money to pay for the construction of said roads, and will thereby incur an indebtedness against said township in a sum which, together with its existing indebtedness, will far exceed two per centum of the value of the taxable property within said township, as ascertained by the last assessment for State and county taxes. The plaintiffs are residents and taxpayers of said township, each owning property therein subject to taxation. Prayer for an injunction. The act of the legislature referred to, upon which the action of the board sought to be enjoined is founded, in the opinion of the writer, confers on the board nothing but ministerial or administrative authority, and does not clothe them with any judicial power or authority whatever. Board, etc., v. Davis, 136 Ind. 503, 36 N.E. 141; Board, etc., v. State, ex rel., 147 Ind. 476, 46 N.E. 908; Board, etc., v. Heaston, 144 Ind. 583, 41 N.E. 457, and authorities there cited. Therefore, no question is presented by the demurrer to the complaint, in the opinion of the writer, as to a collateral attack upon judicial proceedings of the board of commissioners as appellees' counsel seem to suppose. But the majority of the court hold that the act does confer judicial power on the board of commissioners, and does require of them the exercise of judicial functions; and that if the board had jurisdiction of the subject and the parties, mere errors and irregularities in the proceedings would not furnish any ground for an injunction. Stoddard v. Johnson, 75 Ind. 20; Ricketts v. Spraker, 77 Ind. 371; Million v. Board, etc., 89 Ind. 5; Ely v. Board, etc., 112 Ind. 361, 14 N.E. 236; Hobbs v. Board, etc., 116 Ind. 376, 19 N.E. 186; Bowen v. Hester, 143 Ind. 511, 41 N.E. 330.

Nor does the fact that the act under which the proceedings and election were held makes no provision for the service of a personal notice upon each tax payer in the township bring the statute within the inhibition of the constitution, either state or federal. against taking property without due process of law. The act provides only for a special mode of levying taxes on the taxable property of the township for a public purpose. Such taxes may be levied without the personal presence of the tax payer. McMillen v. Anderson, 95 U.S. 37, 24 L.Ed. 335.

The act provides that the propriety of levying the tax and building the road or roads may be submitted to the legal voters of the township by the board, and provides for giving notice of such election through a newspaper of general circulation, published in the county, and posting up notices thereof at certain places; the latter being sufficient where there is no such paper in the county This notice was given. If a majority of the votes cast are against the construction of the proposed road or roads, that is the end of the matter and if a majority be for it, then the act provides that the board of commissioners shall at once proceed to construct the same. They are then required to issue and sell the bonds of the county with which to raise the money to pay therefor, precisely as is required in the act of 1877 a...