Gavin v. Bd. of Com'rs of Wells Co.

• Decision Date: 12 December 1885
• Citation: 3 N.E. 846,104 Ind. 201
• Parties: Gavin v. Board of Com'rs of Wells Co. and others.
• Court: Indiana Supreme Court

104 Ind. 201

3 N.E. 846

Gavin

v.Board of Com'rs of Wells Co. and others.

Supreme Court of Indiana.

Filed December 12, 1885.

Appeal from Wells circuit court.

M. Burwell, for appellant.

Daily & Mock, for appellees.

ELLIOTT, J.

The first paragraph of appellant's complaint describes land of which he is the owner, and alleges that taxes to the amount of $476.50 were assessed against it to aid in the construction of a gravel road; that these taxes were made payable in six annual installments; that the order for the assessment of the taxes was made on the ninth day of September, 1882; and that he has paid all the installments that have become due, and is willing to pay those not due when they become payable. It is further alleged that the board caused the taxes so assessed to be entered upon the tax duplicate on that day; and that “on the sixth day of June, 1884, long after the gravel road was completed and taken off the hands of the contractor, the board of commissioners attempted to levy on the plaintiff, without any notice to him, or any notice whatever, an additional burden, by ordering a levy of eight per cent. on the original assessment, amounting to the sum of $38.12, additional tax for the year 1884.” It is charged in the complaint that “the order of the board making the eight per cent. additional tax levy was unauthorized by any law of this state.” The trial court sustained a demurrer to this paragraph of the complaint, and this ruling is assigned for error.

The contention of the appellant's counsel is that the levy of the additional tax was not authorized by law, and is void. We have been unable to find any statute which authorizes the board of commissioners, after it has once levied a tax to aid in the construction of a free gravel road, to add to the assessment after the tax has been placed upon the duplicate and after the gravel road has been fully completed; and we know of no general rule of law that will sustain such a proceeding. The statute provides that “the final action of the commissioners shall be entered upon their records, together with the report as confirmed, showing how the estimated expense has been apportioned upon the land ordered to be assessed, as aforesaid. The county auditor, before placing the said assessment upon the record, shall add to or reduce, pro rata, the amount the actual expense shall be found to be more or less than the said assessment.” Rev. St. § 5096. The clear implication from this provision is that when the commissioners confirm the report, and direct that the tax be placed upon the duplicate, their powers in that proceeding are exhausted.

The language of the provision clearly imports that the matter is then terminated; for the words employed are “the final action of the commissioners,” and the character of the acts performed by the board shows that the whole matter, so far as tax-payers who do not complain are concerned, is finally disposed of by the action taken by the board upon what the statute denominates the “final report.” There is nothing in any other part of the statute that conflicts with the provision quoted. It is true that in the section 5095 there is the following provision:

“If at any time after making such final order the commissioners shall find that there has been an omission of lots or lands within the territory sought to be assessed, or that there has been manifest injustice in the apportionment of taxes, or that public necessity requires any alteration in the manner of improvement as ordered, they are authorized to make such addition and reapportionment as they may deem proper.”

This provision, it is evident, does not authorize the board of commissioners to assess a new and different tax, and that is really what was done in this instance. It does authorize the commissioners to correct errors in a tax levied pursuant to notice and under the proceedings had under the original notice. The board of commissioners possess only statutory powers, and cannot do any act not expressly or impliedly authorized by statute. This is a general rule, and it applies with peculiar force to such a case as the present; for this is a case where the board exercises a special power in a special case. More than this, the proceeding is one which takes from a private owner money for the benefit of the public, and the case belongs to the class of cases where the officers claiming the right to impose a tax for a special purpose must show clear statutory authority. The statutory authority terminated, in this instance, with the assessment of the tax, and there is no authority to levy, without notice, a new and distinct assessment. A power to effectuate a special purpose is not a continuing one, but is exhausted when once completely exercised. A board of commissioners empowered to order a tax for a special purpose cannot, after the power has been exercised, resume it. Where a board makes a final order, it cannot, at pleasure, take up the matter, and make other orders. Doctor v. Hartman, 74 Ind. 221, and cases cited; City of Madison v. Smith, 83 Ind. 502,vide page 512; Weir v. State, 96 Ind. 311,vide page 313; Board v. Logansport, etc., Co., 88 Ind. 199. There is a broad distinction between general and special powers,-the former are in their nature continuing ones, the latter are not. Platter v. Board, etc., 2 N. E. Rep. 544, (October 7, 1885.) The accomplishment of the special purpose for which a power was granted...