Board of Commissioners of County of Monroe v. Harrell

• Decision Date: 23 February 1897
• Docket Number: 18,045
• Citation: 46 N.E. 124,147 Ind. 500
• Parties: Board of Commissioners of the County of Monroe v. Harrell et al
• Court: Indiana Supreme Court

46 N.E. 124

147 Ind. 500

Board of Commissioners of the County of Monroe v. Harrell et al

No. 18,045

Supreme Court of Indiana

February 23, 1897

Rehearing Denied, April 22, 1897.

From the Monroe Circuit Court.

Reversed.

H. C Duncan, I. C. Batman, R. A. Fulk and Edwin Corr, for appellant.

J. E Henley, J. B. Wilson, H. A. Lee and L. M. Grimes, for appellees.

OPINION

Monks, J.

This appeal was taken from an interlocutory order restraining appellant from letting a contract to construct a free gravel road in Clear Creek township, Monroe county, under the provisions of the act of 1893 (Acts 1893, p. 196), sections 6924-6934, Burns' R. S. 1894, as amended by the act of 1895 (Acts 1895, p. 143).

The injunction was asked upon two grounds:

First, That appellant had no right or authority in law to call an election to vote on the two roads in question for the reason that there was a single petition filed before the board to build three free gravel roads in Clear Creek township, each road being distinct from the others.

Section 2 of the act of 1893, as amended by the act of 1895, under which the proceeding to build said gravel roads was brought, expressly authorizes the petitioners to include in a single petition one or more roads or parts of roads, each of which is disconnected from the other, and provides that all of said roads or parts of roads shall be voted on as a unit. (Acts 1895, p. 145, section 2.)

Section 10, as amended by the act of 1895 (Acts 1895, p. 147), authorizes the commissioners to permit the petition to be amended. Under these sections the petition for these roads could be amended so as to ask for two or only one of said roads, and the order of the board for an election upon a petition so amended would be valid.

If the board of commissioners made an order for an election on only a part of the roads described in the petition this, if an error, would be one of which no one but the petitioners could complain. If they acquiesced in such an order by not taking proper steps to correct the same, the petition would be considered as amended by the petitioners so as to conform to such order.

The act of the board of commissioners in ordering said election for only two roads, even if erroneous, was not void and not, therefore, subject to collateral attack, as was attempted by this proceeding. Porter v. Stout, 73 Ind. 3, 5; Stoddard v. Johnson, 75 Ind. 20, 30; Million v. Board, etc., 89 Ind. 5, 13; Strieb v. Cox, 111 Ind. 299, 304, 12 N.E. 481; Chicago, etc., R. W. Co. v. Sutton, 130 Ind. 405, 410, 30 N.E. 291; Cason v. Harrison, 135 Ind. 330, 333, 35 N.E. 268; Perkins v. Hayward, 132 Ind. 95, 104; McCoy v. Able, 131 Ind. 417, 30 N.E. 528; Jones v. Cullen, 142 Ind. 335, 40 N.E. 124; Gilson v. Board, etc., 128 Ind. 65, 27 N.E. 235.

The second ground upon which the injunction was asked, and the one upon which the court below granted the same, was that "The letting of the contract and issuing the bonds to construct said free gravel roads would create an indebtedness of Clear Creek township in excess of two per cent. of the assessed value of the property of said township, which is prohibited by article 13 of the constitution." Said article reads as follows:

"No political or municipal corporation in this State shall ever become indebted, in any manner or for any purpose, to an amount in the aggregate exceeding two per centum on the value of the taxable property within such corporation, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness; and all bonds or obligations, in excess of such amount, given by such corporation, shall be void: Provided, That in time of war, foreign invasion, or other great public calamity, on petition of a majority of the property owners, in number and value, within the limits of such corporation, the public authorities, in their discretion, may incur obligations necessary for the public protection and defense to such an amount as may be requested in such petition."

Section 5 of the act of 1893, as amended by the act of 1895 (Acts 1895, p. 146), provides that "For the purpose of raising money to pay for such construction, the board of commissioners shall issue the bonds of the county for the full amount of the contract, in denominations of not less than fifty dollars each. * * * The county treasurer shall sell bonds at not less than their face value, and the proceeds shall be kept as a separate and specific fund to pay for the construction of the particular road or roads for which they were issued, and shall be paid by him to the contractor upon the warrant of the auditor as directed by the board of commissioners."

Section 6 of said act, as amended (Acts 1895, p. 146), provides that "For the purpose of raising money necessary to meet said bonds and interest thereof, the board of commissioners shall annually thereafter, at the time the general tax levy is made, levy a special tax upon the property of the township or townships, including the towns and cities, if any there be, of less than thirty thousand inhabitants, in such manner as to meet the principal and interest of said bonds as they shall become due, and such taxes shall be collected as other taxes, and shall be applied to the payment of such bonds and interest. If the road or section thereof so constructed runs into or through two or more townships, the amount paid thereof shall be divided and charged upon the property of each township, in the same ratio that the assessed valuation of all the property in each township bears to the assessed valuation of all the property in all the townships through which the road or roads run, and said special tax be levied accordingly."

The power of the legislature in matters of taxation is unlimited except as restricted by the constitution. The legislature, in the exercise of this power in making local improvements, may create a special taxing district without regard to the boundaries of counties, townships or municipalities. Gilson v. Board, etc., supra.

Judge Cooley, in his work on "Taxation," at p. 113, says, concerning this question: "Taxing districts may be as numerous as the purposes for which taxes are levied. * * * It is not essential that the political districts of the state shall be the same as the taxing districts, but special districts may be established for special purposes, wholly ignoring the political divisions. * * * The political divisions of the state are necessarily regarded in taxation only where the tax itself is for a purpose specially pertaining to one of them in its political capacity, so that, as already stated, the nature of the tax will determine the district."

A tax or assessment for local improvements is based upon the theory that it is a return for the benefit received by the person who pays the tax or by the property assessed.

For the purpose of making such improvement, the legislature may levy a tax upon all or a part of the property in such district by a uniform rule according to its value, or may charge the cost thereof to the property in such district according to what is known as the "front foot" rule, thus determining in advance what property is benefited, or it may delegate to a subordinate agency the power to ascertain and report the benefit, if any, to the different tracts of real estate within such district. In other words, the legislature may declare that all or a portion of the property within such district is benefited, either according to its value or in proportion to its actual benefit to be determined by the legislature itself or by persons selected for that purpose. Gilson v. Board, etc., supra.

The legislature, by the act of 1893, as amended by the act of 1895, for the purpose of apportioning the benefits for the construction of a road or roads, under said law determined in advance what property would be benefited by requiring that the districts should be composed of the township or townships into or through which the proposed roads run, and that all the property in said taxing district would be benefited according to its value.

The provisions of the act of 1889 (Acts 1889, p. 276), for the purchase of free gravel roads in respect to the taxing districts and the property benefited, are substantially the same as those of the statute...