Jefferson School Township v. Litton

• Decision Date: 05 January 1889
• Docket Number: 14,296
• Citation: 19 N.E. 323,116 Ind. 467
• Parties: Jefferson School Township v. Litton, Administrator
• Court: Indiana Supreme Court

19 N.E. 323

116 Ind. 467

Jefferson School Township v. Litton, Administrator

No. 14,296

Supreme Court of Indiana

January 5, 1889

From the Sullivan Circuit Court.

The judgment is affirmed, with costs.

W. C Hultz and O. B. Harris, for appellant.

J. T Hays and H. J. Hays, for appellee.

OPINION

Zollars, J.

As administrator of the estate of A. Litton, deceased, appellee instituted this action against the school township to recover the amount of two certificates of indebtedness issued by the trustee of that township to the McBride Tellurian Company for thirteen of the McBride tellurians. The decedent held the certificate as a bona fide assignee of the McBride Tellurian Company.

It is averred in the complaint that the tellurians were suitable and necessary for the schools of the township; that they were delivered to, and accepted by, that corporation, and have ever since been used in the schools, and that they were of the value agreed upon and stated in the certificates of indebtedness.

Under the decisions of this court the complaint is clearly sufficient to withstand the demurrer. Bloomington School Tp., etc., v. National School Furnishing Co., 107 Ind. 43, 7 N.E. 760; State, ex rel., v Hawes, 112 Ind. 323, 14 N.E. 87; Boyd v. Mill Creek School Tp., 114 Ind. 210, 16 N.E. 511; Miller v. White River School Tp., 101 Ind. 503; Pine Civil Tp. v. Huber Manf'g Co., 83 Ind. 121.

It was held in the case last above cited, that a defence, based upon the act of 1875, sections 6006 and 6007, R. S. 1881, need not be anticipated in the complaint, but must be brought forward by an answer. That, the appellant, defendant below, attempted to do, and the question is, as to whether or not the answer is sufficient under those sections and subsequent legislation.

Section 6006 provides that "Whenever it becomes necessary for the trustee of any township in this State to incur, on behalf of his township, any debt or debts whose aggregate amount shall be in excess of the fund on hand to which such debt or debts are chargeable, and of the fund to be derived from the tax assessed against his township for the year in which such debt is to be incurred, such trustee shall first procure an order from the board of county commissioners of the county in which such township is situated, authorizing him to contract such indebtedness."

Section 6007 provides that "Before the board of commissioners shall grant such order, the township trustee shall file, in the auditor's office of his county, a petition, setting forth therein the object for which such debt or debts are to be incurred and the approximate amount required, and shall make affidavit that he has caused notice to be given of the pendency of such petition, by posting notices, in not less than five public places in his township, at least twenty days prior to the first day of the session of said board."

That those sections limit the authority of township trustees to incur debts on behalf of their school townships, as well as on behalf of their civil townships, we have no doubt. This conclusion was reached in the case of Middleton v. Greeson, 106 Ind. 18, 5 N.E. 755, after a very thorough examination of former rulings, and of those sections, as well as of later statutes which lend aid to the conclusion by way of legislative interpretation. To what was said in that case in support of the conclusion reached, but little need be added here.

The precise question adjudicated in that case was, that a township trustee can not, without complying with the provisions of sections 6006 and 6007, incur a debt on behalf of his school township for the erection of a school-house, in excess of the fund on hand to which such debt is chargeable, and of the fund to be derived from the tax assessed against his township for the year in which such debt is incurred.

The reasoning in the case, however, just as inevitably leads to the conclusion that such trustee is thus limited by those sections in contracting debts in behalf of his school township for school furniture and apparatus.

Such contracts were by far the most common, and had led to abuses which the Legislature, doubtless, intended to check by the enactment of sections 6006 and 6007, supra, and by the passage of subsequent acts. The act of 1873 (Acts 1873, p. 209; section 4471, R. S. 1881), for example, referred to in the decision of that case, has as much reference to debts contracted for school furniture and apparatus as for erecting or repairing school-houses.

The title of the act is: "An act to authorize township trustees to levy an additional tax * * * for the purpose of paying, satisfying, and liquidating debts made and contracted by such trustee, in the construction, repairing, or completing of school-houses, and providing furniture and school apparatus therefor," etc.

And so, the act provided that in all cases where any township trustee may have heretofore contracted debts against any township in the construction, repairing or completion of school-houses, or in providing furniture, or school apparatus therefor, and the special school revenue tax as provided for, etc., shall be insufficient to satisfy, pay and liquidate debts so made and contracted by such trustee, then, and in that case, such township trustee might make an additional levy, etc.

That act not only shows that the term "township trustee" was used by the Legislature as designating the officer, whether acting as trustee of the civil township or as trustee of the school township, but, also, that school townships had become indebted for school-houses, and for school furniture and apparatus, beyond their ability to pay without a tax levy beyond what the law at that time authorized. The purpose of the act was to enable township trustees to pay off the indebtedness of both the civil and school townships, and start anew.

When 1875 came, it was found, in all probability, that while the act of 1873, supra, may have enabled township trustees to pay off the prior indebtedness of the civil and school townships, it had in no way tended to lessen prodigal expenditures on their part.

As stated in the case of Middleton v. Greeson, supra, the act of 1875 (sections 6006 and 6007, supra,) doubtless was intended to check and remedy a growing evil. That evil, as evidenced by the act of 1873, supra, was the contracting of debts in the building and repairing of school buildings, and in the purchase of school furniture and apparatus, in excess of the funds at the command of the trustees.

It would not be reasonable to suppose that the Legislature, with the evils before it, as evidenced by the act of 1873, intended by the act of 1875 to overlook the greatest of those evils, viz., the prodigal incurring of debts for school furniture and apparatus.

Having determined that sections 6006 and 6007 limit the power of township trustees to incur debts on behalf of school townships in the purchase of school supplies, we come to the question of the proper construction of section 6006, about which counsel disagree.

Without an order from the county board, a township trustee can not incur on behalf of his township any debt or debts whose aggregate amount shall be in excess of the fund on hand to which such debt or debts are chargeable, and of the fund to be derived from the tax assessed against his township for the year in which such debt is to be incurred.

What is the proper construction of that portion of the section which we have italicized?

Counsel for the appellee contend that the "fund on hand" means the money actually in the hands of the trustee, and the amount to be derived from the special school revenue tax assessed in the prior year and collectible during the year in which the debt is to be incurred, and that "the fund to be derived from the tax assessed against his township for the year in which such debt is to be incurred," is the fund to be derived from the tax assessed in the year in which the debt may be incurred, although collectible in the year following. We can not give our sanction to that construction.

In the absence of anything in the act indicating a different intention, the "year" must be taken to be the calendar year, from the 1st day of January to the 31st day of December. Section 240, R. S. 1881. The language of the section, it will be observed, is not "and of the fund to be derived from the tax assessed against the township in the year," but "of the fund to be derived from the tax assessed against the township for the year" in which the debt is to be incurred.

The township trustee has...