Hilton v. Mason

• Decision Date: 15 December 1883
• Docket Number: 10,891
• Citation: 92 Ind. 157
• Parties: Hilton et al. v. Mason, Treasurer
• Court: Indiana Supreme Court

92 Ind. 157

Hilton et al. v. Mason, Treasurer

No. 10,891

Supreme Court of Indiana

December 15, 1883

From the Jay Circuit Court.

The judgment is affirmed, with costs.

T Bosworth, O. H. Adair, J. M. Haynes and S.W. Haynes, for appellants.

J. W Headington, D. T. Taylor, J. J. M. LaFollette, J. M. Smith and J. B. Cohrs, for appellee.

OPINION

Franklin C.

The appellants filed their complaint in the Jay Circuit Court on the 15th day of April, 1882, to enjoin the collection of a tax voted by the citizens of Wayne township in that county, in aid of the Lake Erie and Western Railway Company, and on June 8th, 1882, filed their amended complaint. The complaint enumerated in eleven distinct specifications eleven reasons or causes why the tax should be enjoined. Demurrers were filed to the complaint, and to each specification severally. The demurrer was overruled to the complaint and 1st, 5th, 9th and 10th specifications, and sustained to the 2d, 3d, 4th, 6th, 7th, 8th and 11th specifications. Both parties excepted.

Appellee filed an answer in denial. There was a trial by the court; finding for the defendants, and time given the plaintiffs until the next term in which to file a motion for a new trial. Motion filed, and at the January term, 1883, the same was overruled, and a judgment rendered for the defendants for costs.

The errors assigned are the sustaining of the demurrers to the 2d, 3d, 4th, 6th, 7th, 8th and 11th specifications, and overruling the motion for a new trial.

The appellee, after formally joining in the errors assigned, has assigned cross errors upon the overruling of the demurrer to 1st, 5th, 9th and 10th specifications.

The first objection made by appellants to the sustaining of the demurrers to the above mentioned specifications is, that under the code of Indiana, as construed by this court, no demurrer can be interposed to the separate specifications.

In support of this proposition we have been referred to the following authorities: Estep v. Estep, 23 Ind. 114; O'Haver v. Shidler, 26 Ind. 278; Smith v. Muncie National Bank, 29 Ind. 158; Voorhees v. Hushaw, 30 Ind. 488; Beals v. Beals, 27 Ind. 77; Mathews v. Norman, 42 Ind. 176.

We have examined these cases and think that none of them are applicable to the case under consideration. All that is decided by any of them in relation to this question is, that where the complaint consists of but one paragraph, under our code, a special demurrer will not lie to a separate allegation, not containing a cause of action within itself, but the remedy in such cases is by motion to strike out.

We have also been referred to the case of Boden v. Dill, 58 Ind. 273. That was a suit upon an injunction bond; but one breach was assigned, under which several specifications of injury were alleged. The court held that a separate demurrer would not lie to either of the specifications of injury; that there was but one condition in the bond and but one breach could be alleged; that condition is an entirety, and there could be but one fulfilment of it; that it was not like a bond with several conditions, or where several breaches might be assigned, as a suit for slander or libel, in which such practice of demurring to separate parts of the same paragraph would be permissible; that the better practice in the case then under consideration would have been to have moved to strike them out.

The case of State, ex rel., v. Hawkins, 81 Ind. 486, is not applicable to this question; that was a demurrer to the whole paragraph for duplicity.

But we think this question is settled by later decisions of this court than that in Boden v. Dill, 58 Ind. 273.

The case of Mustard v. Hoppess, 69 Ind. 324, is very similar to the one under consideration, in which the following language is used by Worden, J.: "We may observe, in reference to the first question thus presented, that it seems to have been the common practice in cases of this and the like nature, to set forth, in one paragraph of complaint, the levying of the tax, and then to proceed, as was done in this case, to state separately the several grounds, where there were several, on which it was claimed that the assessment of the tax was illegal and void.

"This practice has the merit of convenience, and economy of time and expense, as it saves the repetition of the whole statement of the levying of the tax with each specification of objections to it. * * *

"It seems to us, in analogy to the practice in kindred cases to be soon noticed, the defendants would have the right to either plead or demur to each of the specifications, in the same manner as if each had been contained in a separate paragraph of the complaint. Thus, in actions for slander, where there are different sets of words charged in one paragraph of complaint, the defendant may plead or demur to each set of words. Also, in actions upon bonds, where there are several breaches assigned in one paragraph of complaint, the defendant may plead or demur to each breach assigned."

This ruling was again affirmed in the case of Sheetz v. Longlois, 69 Ind. 491; and, again in Reynolds v. Faris, 80 Ind. 14.

Under these late and well considered cases, there can be no doubt of this being the correct practice, and within the exceptions noted in Boden v. Dill, 58 Ind. 273.

Appellants' counsel further insist that the statute in relation to voting aid to railroad companies is of doubtful constitutionality, and, being in derogation of common right, should be strictly construed.

In the case of Petty v. Myers, 49 Ind. 1, this court held that the constitutionality of the statute was no longer an open question in this State, and that ruling has been uniformly adhered to ever since.

The law having its origin in, and being based upon, the will of the people, and having been sanctioned by the wisdom of many years practical experience, the object of courts in construing its provisions has been to give effect to, and not to defeat the purposes of, the law. And while they hold parties to a substantially strict compliance with the provisions of the statute, they ought not to give the language used such a hypercritical construction as to nullify the law and defeat the objects of its enactment.

These petitions frequently emanate directly from the people, and they are therefore often drawn loosely and without the skill of the legal pleader or conveyancer, and ought, therefore, to receive a reasonable construction, instead of a technical and rigid rule of construction of the language used. Garrigus v. Board, etc., 39 Ind. 66; Detroit, etc., R. R. Co. v. Bearss, 39 Ind. 598; Wilson v. Board, etc., 68 Ind. 507.

In the last case cited, the court uses the following language: "The petition is loosely worded, and was not drawn with legal accuracy and precision, but it seems to us that the object and purpose of the petition could not be misunderstood by any one, and certainly were not misunderstood by the county board, as is clearly shown by the record of their proceedings on said petition." These objections are not well made.

Having disposed of these general and preliminary questions, it is insisted that each specification to which the demurrer was sustained is sufficient. They read as follows:

"2d. There is a discrepancy between the petition and the notice, in this, the petition asks aid for the Lake Erie and Western Railway Company, and the notice to the taxpayers is to vote aid to the Lake Erie and Western Railroad Company.

"3d. There is a discrepancy between the petition presented to the board, and the order made by said board, in this, said petition asks aid to the Lake Erie and Western Railway Company, and the order made by said board for said Wayne township to hold an election to determine whether they would vote said aid, does not state what railroad is to receive said aid; and the order of said board of commissioners for the assessment is to aid the Lake Erie and Western Railroad company in the construction of their road.

"4th. Because said petition to said board of commissioners is wholly defective, and gave the board of commissioners no authority to act on said petition, in this, said petition does not state that the money prayed for in the petition is to aid in the construction of the Lake Erie and Western Railway; the petition does not state whether said railway was finished in whole or in part; said petition does not state any year upon which said tax shall be based or levied.

"6th. Because said Lake Erie and Western Railway Company had not, at the time said petition was presented to said board of commissioners, and hence not now, any interest whatever in, or claim to, the money so raised by said tax.

"7. Because said sum so raised by said tax was not voted as aid to construct said railway, but to relieve certain persons from paying a bond, which they had given to secure the said sum of money.

"8th. Because the tax so levied, if collected, is not for the benefit of said railway company, neither any part thereof, but said entire amount is for the sole benefit of Brown, Howard & Co., a partnership firm, who were contractors for the construction of said railway, and who had completed their work, and had been discharged from the said contract long before said petition was filed asking for said appropriation.

"10. Because said tax is unconstitutional and void. Wherefore," etc.

No appeal was taken from any of the proceedings of the board of commissioners upon this petition. And the law is well settled in this State, that jurisdictional questions passed upon by the board of commissioners on matters within their jurisdiction are settled, and, in the absence of allegations of fraud, can not be enquired into collaterally by way of injunction. In the case of Markle v....