Brown v. Miller

• Decision Date: 24 May 1904
• Docket Number: 20,264
• Citation: 71 N.E. 122,162 Ind. 684
• Parties: Brown et al. v. Miller et al
• Court: Indiana Supreme Court

71 N.E. 122

162 Ind. 684

Brown et al. v. Miller et al

No. 20,264

Supreme Court of Indiana

May 24, 1904

From the Decatur Circuit Court; Ben L. Smith, Special Judge.

Proceeding by Charles P. Miller and others against John H. Brown and others. From a judgment in favor of plaintiffs, defendants appeal.

Affirmed.

Davison Wilson and J. F. Godard, for appellants.

B. F Bennett, T. E. Davidson, Hugh Wickens and J. E. Osborn, for appellees.

OPINION

Monks J.

This proceeding was brought by appellees under the act of 1893 (Acts 1893, pp. 196-200), as amended by the acts of 1895 and 1899 (Acts 1895, pp. 143-148, Acts 1899, pp. 128-130), to improve certain roads in Adams and Clinton townships, Decatur county. It appears from the record that three copies of the petition were filed before the board of commissioners, one of said copies was signed by twenty-seven freeholders, voters of Clinton township; one copy was signed by more than fifty freeholders, voters of Adams township; and one copy was signed by twenty freeholders, voters of Adams township. Each copy stated that "this petition is written in triplicate, and all three of said copies are to be presented together and considered as a single petition marked A, B, and C." The petition prayed for the improvement of certain established roads and for the improvement of certain new roads not established and opened.

Three questions are presented by the record: (1) In a taxing district composed of more than one township, is it sufficient if the petition is signed by fifty freeholders who are voters of said townships? (2) Did the three copies of the petition constitute a single petition? (3) Has the board of commissioners the power, under said statutes, to improve roads already established, and also in such a proceeding to establish and improve new roads? Each of these questions was answered in the affirmative by the board of commissioners and by the court below on the appeal. If all of said answers were correct, this case must be affirmed, but if not, it must be reversed.

Section one of said act of 1899 provides "that the county commissioners of any county in this State, when petitioned therefor by fifty freeholders, voters of any township or townships contiguous to each other, * * * inhabitants in such county where such road or roads are to be improved * * * shall submit to the voters of said township or townships, towns and cities in said township or townships." Taking only the words directly applicable here, we have, "fifty freeholders, voters of any * * * townships contiguous to each other, * * * where such road or roads are to be improved." These words specifically call for but fifty freeholders from the contiguous townships joined in the petition. The people of one township may have some concern and interest in the highways of a contiguous township. The residents of one portion of a township may be more concerned in the condition of the highways in the adjoining township than in the highways in other portions of the township in which they reside.

Each township in a county is a part of the taxing district consisting of the entire county, for the purpose of keeping the free pikes in repair. One township which may have no improved roads is taxed for the maintenance of such roads in adjoining townships. Incorporated towns and cities pay tax to repair the free pikes in the same county, although the proceeds of such tax levy are expended without their corporate limits, and they maintain their own streets. This tax has been held to be constitutional. Byram v. Board, etc., 145 Ind. 240, 33 L. R. A. 476, 44 N.E. 357; Read v. Yeager, 104 Ind. 195, 3 N.E. 856. It is said in Cooley, Taxation, 113: "Taxing districts may be as numerous as the purposes for which taxes are levied. The district for a single highway may not be the same as that for the schoolhouse located upon it. 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." Gilson v. Board, etc., 128 Ind. 65, 71, 72, 11 L. R. A. 835, 27 N.E. 235; Board, etc., v. Harrell, 147 Ind. 500, 504, 505, 46 N.E. 124.

The taxing district may be one or more townships of the county and it is clear from the language used that it is sufficient if the petition be signed by fifty or more freeholders of the taxing district, whether the same is composed of one township or more. "Moreover, it is a settled rule of statutory construction that when a statute or a part of a statute has been construed by the courts of the State and the same is substantially reenacted, the legislature adopts such construction, unless the contrary is clearly...