Gilson v. The Board of Commissioners of Rush County

• Decision Date: 10 April 1891
• Docket Number: 15,785
• Citation: 27 N.E. 235,128 Ind. 65
• Parties: Gilson et al. v. The Board of Commissioners of Rush County
• Court: Indiana Supreme Court

27 N.E. 235

128 Ind. 65

Gilson et al. v. The Board of Commissioners of Rush County

No. 15,785

Supreme Court of Indiana

April 10, 1891

From the Rush Circuit Court.

Judgment affirmed.

J. H Mellett and M. E. Forkner, for appellants.

J. Q Thomas, K. M. Hord and E. K. Adams, for appellee.

OPINION

Coffey, J.

By an act of the General Assembly, approved March 8, 1889 (Acts of 1889, p. 276), it is provided that the county commissioners of any county in this State, when petitioned therefor by fifty freeholders, citizens of any township, or townships, in the county, where a toll-road is located, shall submit to the voters of said township, or townships, in such county through which said road may pass, at a regular or special election giving at least twenty days' notice in a newspaper of general circulation published in said county, and by posting up written or printed notices thereof at each voting place in said township, or townships, the question of purchasing turnpikes, or toll-roads, in said township, or townships. The vote on such question is required to be certified by the proper officers of election to the county commissioners, and, if a majority of the votes at such election is in favor of the purchase, it is made the duty of such board to purchase such toll-road. Before such election is held it is the duty of the board of commissioners to appoint a surveyor, or engineer, of the county, and two disinterested freeholders of the county, one of such freeholders to be selected by the board, and the other by the company owning the road, to view the road to be purchased, and determine the consideration to be paid for the same. It is further required that the consideration to be paid shall be published as a part of the notice of election.

Upon the order for the purchase of such toll-road, or a section thereof, being made by the board of commissioners, the company owning such road is required to execute and deliver to such board a written deed, under the seal of the company, conveying to the board the road, or section thereof, described in the petition, including the bridges on the line thereof, and thereupon the board of commissioners may issue to such company the bonds of the county, payable in instalments, or at annual intervals, not exceeding, in all, the period of five years, bearing interest at a rate not exceeding six per cent., payable annually.

For the purpose of raising money necessary to meet said bonds, and the interest thereon, the board of commissioners is required to levy an annual tax upon the property of the township, or townships, voting for such purchase, in such manner as to meet the principal and interest of said bonds. If the road, or section thereof, purchased, runs into, or through, two or more townships, the amount paid therefor is to be divided and charged upon the property in such townships in proportion to the assessed value thereof purchased in each township.

Lands which have been previously assessed for the construction of free gravel roads are exempt from taxation under the provisions of this act until all other lands in the township shall have been assessed an amount equal to the assessment made under the act for the purchase of toll-roads.

Toll-roads purchased under this act are made free, and are to be kept in repair as roads constructed under the free gravel-road laws of the State.

Under the provisions of this statute fifty freeholders of the townships of Center, Jackson, and Rushville, in Rush county, in the month of December, 1889, filed in the office of the auditor of said county a petition signed by them, praying the board of commissioners of said county to submit to the voters of said townships, at a special election, the question of purchasing a certain toll-road extending through said townships, from the city of Rushville, in said county, to the town of Knightstown, in Henry county, known as the Rushville, Raysville, and Knightstown Gravel Road.

Such proceedings were had under this petition that the road was appraised, the election was ordered, notice thereof given, the election held, and a return thereof made to the Board of Commissioners of Rush county. The board determined that a majority of the votes cast at such election was in favor of the purchase of the road, and thereupon entered an order to purchase the same, took a conveyance thereof from the company owning it, and issued to the company the bonds of Rush county in payment therefor. A majority of the votes cast in Center township was against the purchase, but a majority of all the votes cast in the three townships voting at such election was in favor of purchasing the road. The amount to be paid for the road was apportioned among the three townships as follows: Center township, $ 4,439.60; Jackson township, $ 2,632.98; and Rushville township, $ 849.25.

This action was commenced by the appellants, who are resident freeholders and tax-payers of Center township, in the county, to enjoin the board of commissioners from levying a tax to meet the principal and interest of the bonds issued by Rush county, in payment for the toll-road so purchased pursuant to the prayer of the petition above referred to. The court sustained a demurrer to the complaint, and this ruling is called in question here by a proper assignment of error.

The first contention of the appellants is, that the act of the General Assembly under which the appellee assumed to purchase the toll-road in question is void, as being in conflict with section 22, article 4, and section 1, article 10, of our State Constitution.

So much of section 22, article 4, as is material to the controversy here, reads as follows: "The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: For the assessment and collection of taxes for State, county, township, or road purposes."

Section 1, article 10, is as follows: "The General Assembly shall provide, by law, for a uniform and equal rate of assessment and taxation; and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal, excepting such only, for municipal, educational, literary, scientific, religious, or charitable purposes, as may be specially exempted by law."

It is held that a statute which is of general and uniform operation throughout the State, and operates alike upon all persons, under the same circumstances, is not subject to the objection that it is special or local legislation. State, ex rel., v. Reitz, 62 Ind. 159; McLaughlin v. Citizens, etc., Ass'n, 62 Ind. 264; Heanley v. State, 74 Ind. 99; Elder v. State, 96 Ind. 162.

The statute we are now considering is of uniform operation throughout the State of Indiana, and applies alike to all persons coming within its operation, and is not in conflict with the provisions of section 22, article 4, of our State Constitution.

The question as to whether it is in conflict with section 1, article 10, above quoted, is a much more serious question. This provision of our Constitution received a construction in the case of Bright v. McCullough, 27 Ind. 223. It was said in that case: "The section does not require that the rate of assessment shall be uniform and equal for all purposes throughout the State; and we think its meaning clearly is, that the rate of assessment and taxation must be uniform and equal throughout the locality in which the tax is levied."

So, again, it received a construction in the case of Lafayette, etc., R. R. Co. v. Geiger, 34 Ind. 185. That was a suit to enjoin the levy and collection of a tax in aid of the construction of a railroad. It was contended that inasmuch as the railroad ran through the counties of Madison, Tipton, Clinton, Tippecanoe, and Benton, in this State, it was necessary that each and all of the counties must vote for an appropriation, and assess the same amount of tax in each county to make it uniform and equal. In answer to this contention the court said: "If the tax assessed is equal and uniform in the county where assessed, it will be in strict accordance with the requirements of the Constitution." See, also, John v. Cincinnati, etc., R. R. Co., 35 Ind. 539.

It is not unusual for the Legislatures of the several States in the Union, in the exercise of the general power of taxation, as well as in the power of local assessments, to create a special taxing district, without regard to municipal or political subdivisions of the States, and to levy a tax on all property within such district by a uniform rule, according to its value, for the purpose of aiding in the construction of public local improvements.

Our laws providing for street improvements, for the construction of free gravel roads, for the construction of ditches and drains, and for aid in the construction of railroads, are examples of this kind of legislation.

True, in most cases, such improvements are paid for by local assessments against real property, which, in theory, is benefited to an amount equal to the assessment. But it is by no means universally true that such improvements are paid for by assessments against real estate supposed to be benefited; but, on the contrary, they are often paid for by the assessment of a tax on all property found within the taxing district. The doctrine announced in Bright v. McCullough, supra, that the requirements of section 1, article 10, are fulfilled when the rate of assessment and taxation is uniform and equal throughout the taxing locality, has often been affirmed by this court. Palmer v. Stumph, 29 Ind. 329; Anderson v. Kerns Draining Co., 14 Ind. 199; Goodrich v. Winchester, etc., T. P. Co., 26 Ind. 119.

In the case of Bowles v. State, 37 Ohio St. 35 the question now under...