Hill v. Probst
| Decision Date | 01 November 1889 |
| Citation | 120 Ind. 528,22 N.E. 664 |
| Parties | Hill v. Probst, County Treasurer, et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Dearborn county; William H. Bainbridge, Judge.
George E. Downey, for appellant. J. K. Thompson and McMullen & Johnson, for appellees.
This was an action instituted by the appellant against the appellee, as treasurer, in the Dearborn circuit court, to enjoin the collection of a tax voted by the legal voters of Center township, in Dearborn county, to aid the construction of a railroad. In the original complaint the appellant, after averring the existence of the tax upon the tax duplicate of the county, alleges in four different specifications the reasons for the illegality of such tax as follows: First. That said pretended election, so held in said Center township, was illegal and void, because the notices thereof were not posted until the 11th day of November, 1886, when the election was ordered by the board of county commissioners to be held, and was held, on the 23d day of November, 1886; the statutes of the state of Indiana in force at that time requiring that said hand-bills shall be posted by the sheriff of the county three weeks prior to the day fixed for taking the vote of the township named in said petition. Second. The said board of county commissioners did not, at their regular June session following said pretended election, or at any other time, make any order granting the prayer of said petition above named, nor did they in any other way, directly or indirectly, grant the said petition. Third. The said board of county commissioners did not, at their regular June session following said pretended election, or at any other time, make any order levying any special tax for the purpose of making such appropriation to said Louisville, Cincinnati & Dayton Railroad, as is required by the statutes of the state in such cases made and provided, nor did said board at any time order said assessment of 20 cents on the $100 in valuation of the taxable property in Center township to be placed on said tax duplicate for collection; but said erroneous and illegal assessment was so placed on said tax duplicate without the proper order of the board of county commissioners. and without authority of law. Fourth. Said pretended special tax is improperly and illegally placed on said duplicate, because at the time it was so placed thereon the Louisville, Cincinnati & Dayton Railroad was not, and is not now, permanently located in said Center township. The court sustained a demurrer to said first, third, and fourth specifications, and the appellant excepted. Appellant thereupon, with leave of the court, filed a second paragraph of complaint, in which he set out four specifications which he claims rendered the tax sought to be enjoined illegal, as follows: First. That said pretended election so held in Center township is illegal and void, because the notices thereof were not posted until the 11th day of November, 1886, when the election was ordered by the board of county commissioners to be held, and was held, on the 23d day of November, 1886; the statutes of the state of Indiana in force at that time requiring that said hand-bills shall be posted by the sheriff of the county three weeks prior to the day fixed for taking the vote of the township named in said petition; and no notices were posted by any one acting for the sheriff, and by his authority, three weeks before said election, of which any return was made, and, in fact, no notices were posted. Second. The said board of county commissioners of Dearborn county did not at their regular session following said pretended election, or at any other time, make any order granting the prayer of said petition above mentioned, nor did they in any other way, directly or indirectly, grant the said petition. Third. The said board of county commissioners did not at their regular session following said pretended election, or at any other time, make any order levying any special tax for the purpose of making such appropriation to said Louisville, Cincinnati & Dayton Railroad, as required by the statute of the state in such cases made and provided; nor did said board at any time order said assessment of 20 cents on the $100 in valuation of the taxable property in Center township to be placed on said tax duplicate for collection; but said erroneous and illegal assessment was so placed on said tax duplicate without any order of the board of county commissioners, and without authority of law. Fourth. Said pretended special tax is improperly and illegally placed on said duplicate, because at the time it was so placed thereon the Louisville, Cincinnati & Dayton Railroad was not, and is not now, permanently located in said Center township. The court sustained a demurrer to the first and second specifications of the second paragraph of the complaint, and overruled it as to the third and fourth, and the appellant excepted. The appellee answered in two paragraphs. The first is a general denial, and the second avers the assessment of the tax sought to be enjoined by the board of commissioners of Dearborn county, setting out a full transcript of the proceeding of the said board in the matter of the petition for the assessment of a tax in Center township to aid in the construction of the Louisville, Cincinnati & Dayton Railroad. A demurrer was overruled to the second paragraph of the answer, and an exception taken. Upon issues formed there was a trial by the court, resulting in a finding and judgment for the appellee. The errors assigned are- First, that the court erred in sustaining the demurrer to the first, third, and fourth specifications of cause in the complaint; second, that the court erred in sustaining the demurrer to the first and second specifications of cause in the additional second paragraph of complaint; third, that the court erred in overruling the demurrer to the second paragraph of the answer; fourth, that the court erred in overruling the motion for a new trial.
There seems to be no material difference in the specifications of cause in the first and second...
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