Davern v. Bd. of Com'rs of Decatur Cnty.
| Decision Date | 16 November 1904 |
| Docket Number | No. 5,212.,5,212. |
| Citation | 72 N.E. 268,34 Ind.App. 44 |
| Parties | DAVERN et al. v. BOARD OF COM'RS OF DECATUR COUNTY. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Decatur County; Willard New, Special Judge.
Action by Daniel Davern and others against the board of commissioners of Decatur county. A judgment was rendered in favor of defendant, and plaintiffs appeal. Case transferred from Supreme Court. Affirmed.
Davison Wilson and Jno. F. Goddard, for appellants. Bennett & Davidson and Wickens & Osborn, for appellee.
Appellants sought to enjoin the board of commissioners of Decatur county from submitting to the voters of Adams and Clinton townships, of said county, at a regular or special election, the question of improving certain roads and highways in said townships, and to improve certain new roads and parts of roads not theretofore opened, laid out, or established, upon the ground that the commissioners did not have jurisdiction of the subject-matter. The court sustained appellee's demurrer to the amended complaint, and its special demurrers to each of the eight separate specifications thereof. Appellants refusing to plead further, judgment was rendered in favor of appellee for costs. These rulings are assigned as error.
The amended complaint, in substance, shows that on the 6th day of August, 1900, a petition was presented by Charles B. Miller and others, praying for the improvement of certain roads and highways described therein, in Clinton and Adams townships, Decatur county, Ind., by graveling, paving, or macadamizing; when so graveled, paved, or macadamized, to be free of toll. The complaint shows that three copies of the petition were written, and the copies circulated and signed separately-each petitioner signing but one copy-but that these copies were attached together and filed as a single petition. Said petition, before any signatures were obtained, stated, “this petition is written in triplicate and all three of said copies are to be presented together and considered as a single petition.” The copy designated as “Exhibit A” was presented by the resident freehold voters of Clinton township, which showed affirmatively that the petitioners were resident freehold voters of said Clinton township, in number 25, and less than 50. The second copy of said petition, designated as “Exhibit B,” was presented by resident freehold voters of said Adams township, and in numbers more than 50. The third was presented by the resident freehold voters of said Adams township, and that copy affirmatively showed that the petitioners were freehold voters of said township, and in number 27. On the 7th day of August, 1900, said board of commissioners, passing on said petitions, found that they constituted but a single petition, and were treated by the board and intended by the petitioners as a single petition; that the system of roads was a continuous and connected system extending in and through said township, except the Foster Schoolhouse and Mt. Moriah Roads, which did not connect with each other or any other main road. The said board also found that said petition was signed by 50 freehold voters of Adams and Clinton townships, and appointed a civil engineer and viewers, and ordered an election to be held on a day to be fixed in the future. The petition asked to have improved certain new roads and parts of roads lying wholly within the township of Adams, alleging that said new roads or parts of roads had not previously been opened, laid out, or established; and the petition did not aver that said new roads or parts of roads would shorten the route, straighten the roads, and give better drainage. Said petitions were signed by different persons, circulated, signed, and executed separately and independently of each other. It was alleged that the proposed improvement, including bridges, culverts, and drains, would exceed 4 per cent. of the taxable property of the said township, and the ordering of the proposed improvement was in violation of law, as there was not at the time of the filing of said petition any gravel-road fund for the payment of the expenses and per diem of the engineer and viewers. It is not shown that any report on said petition or estimate of the cost of the road had been made by the viewers and engineer, nor what would be the cost of the road, nor the value of the taxable property.
Appellants discuss and contend for but two propositions: First, to create a taxing district of two or more townships, the petition should be signed by 50 freehold voters of each township; second, the board of commissioners has no power under the statute to construct a gravel road over a route not already laid out or established according to statute.
Said petition was presented under an act approved February 24, 1899 (Acts 1899, p. 128, c. 97). That part of the act applicable to the question before us reads as follows: “That the county commissioners of any county in this state, when petitioned therefor by fifty (50) 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 ***.” The words “fifty freeholders, voters of any township or townships contiguous to each other *** where such roads are to be improved,” show that but 50 freeholders are required from one or more of the townships. Construction of a statute is resorted to only when the words employed are ambiguous or of doubtful meaning. Neither of these reasons exists in the language quoted.
It is contended by appellants that the words “any township,” when applied to a district composed of two or more townships, have the meaning of “every township”; that the interpretation that only 50 freehold voters are required to petition for all the townships would result in an injustice not contemplated by the Legislature. To quote the illustration given in appellants' brief: ...
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