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

• Decision Date: 15 June 1886
• Citation: 107 Ind. 15,8 N.E. 1
• Parties: Johnson v. Board of Com'rs of Wells Co. and another.
• Court: Indiana Supreme Court

107 Ind. 15

8 N.E. 1

Johnson

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

Supreme Court of Indiana.

June 15, 1886.

Appeal from Wells circuit court.

N. Burwell, for appellant. Dailey, Mack & Simmons and Wilson & Todd, for appellees.

Zollars, J.

The board of commissioners of Wells county were in session on the first Monday after the second Tuesday in October, 1881, for the purpose of receiving reports from school trustees, as provided by section 4441, Rev. St. 1881, and for no other purpose. They adjourned from day to day until the subsequent Thursday, being the twentieth day of October, 1881. On that day a petition was presented to the board, signed by the requisite number of proper persons, as required by section 5092, Rev. St. 1881, asking for the construction of a free gravel road, known as the “Bluffton & Rockford Gravel Road.” A proper bond was also filed with the petition. The board appointed the requisite number of viewers, and an engineer, and fixed the twenty-first day of November, 1881, as the day upon which they should examine, view, and lay out the road. After this action by the board the proceedings were all regular to the final construction and completion of the road, and the issue and negotiation of the bonds, as required by the act. Appellant's lands were assessed $348, to be paid in five years, in equal semi-annual installments. The amount charged against his land for the year 1882-83 he has paid. All proceedings by the county board subsequent to the twentieth day of October, 1881, as above stated, were had and taken at regular sessions of that body, as fixed by law. The only infirmity in the proceeding is the initial steps, taken on the twentieth day of October, 1881. On that day the board was not sitting in regular or special session for the transaction of general business, but only, as above stated, for the one purpose of receiving reports from school trustees.

This proceeding was before this court in the case of Fahlor v. Board Com'rs Wells Co., 101 Ind. 167, and it was there held that a complaint by Fahlor to enjoin the collection of an assessment against his land was good, because it showed that the proceedings and orders of the county board had and made on the twentieth day of October, 1881, were a nullity, the board not being in regular or special session for the transaction of such business. The decision in that case was made on the thirteenth of March, 1885. Upon the authority of that case, and the averments in the complaint in the case before us, we assume that the proceedings of the county board, on the twentieth day of October, 1881, were irregular, and for that reason a nullity, as well as all of the subsequent proceedings resting thereon.

On the eleventh day of April, 1885, an act was passed, with an emergency section, the purpose of which was to legalize the proceedings of the county board in relation to the gravel road. There is a lengthy preamble, reciting the facts, followed by the following: “Therefore-Section 1. Be it enacted * * * that all the sessions of the board of commissioners of Wells county, in the state of Indiana, and all the acts of said board in relation to the Bluffton & Rockford gravel road, * * * are hereby legalized and declared valid; that all the assessments and charges made for the construction of said Bluffton & Rockford gravel road, * * * and all the bonds issued or sold in aid thereof, and all contracts, assessments, and levies made in relation thereto, are hereby legalized and declared valid.” Acts 1885, p. 178.

By this action, commenced on the first day of May, 1885, appellant seeks a perpetual injunction against the collection of the unpaid assessment against his land.

The above act, if it is constitutional, is broad enough in its terms to cover and legalize all of the proceedings by the county board in connection with the gravel road. We are met, in limine, with the important question: Is the act constitutional? That question involves the following inquiries: (1) Is the act unconstitutional because retrospective in terms and effect? (2) Is it unconstitutional as being in conflict with section 23 of article 4 of the constitution, which declares that in all cases enumerated in section 22 of that article, and in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the state? (3) Is the act unconstitutional as being in conflict with section 22 of article 4 of the constitution, which declares that the general assembly shall not pass local or special laws in certain enumerated cases, among which is “for the laying out, opening, and working on highways,” etc.? (4) Is the act unconstitutional as being an infringement upon the judicial department of the state government by the legislative department? In other words, did the legislature, in the passage of the act, assume and exercise judicial functions?

These in their order.

1. There is no inhibition in the constitution against the passage of retrospective statutes. That such statutes may be passed by the legislature, in the absence of a constitutional inhibition, is well settled, and especially is this so if the effect of the statute is in accord with justice, equity, and sound public policy; and hence such statutes have been sustained where their effect was to render valid contracts which but for them would have been void. Andrews v. Russell, 7 Blackf. 474;Reed v. Coale, 4 Ind. 283;Wood v. Kennedy, 19 Ind. 68;Price v. Huey, 22 Ind. 18;Sparks v. Clapper, 30 Ind. 204;Perrin v. Lyman's Adm'r. 32 Ind. 16. See, also, Henderson v. State, 58 Ind. 244;Pritchard v. Spencer, 2 Ind. 486;Flinn v. Parsons, 60 Ind. 573. It must be regarded as settled, also, that curative or retrospective legislation will not be upheld if it materially interferes with or overthrows vested rights, creates and imposes new burdens, or infringes upon the judicial department of the government. The general and better rule is that curative statutes will not be sustained as legalizing proceedings had without jurisdiction over the subject-matter or the person, and where there was an entire lack of power on the part of the court, body, or officer, whose proceedings are sought to be legalized. Strosser v. City of Fort Wayne, 100 Ind. 443, and the cases there cited. See, also, Welty, Assessm. 381-386; Lewis v. Brackenridge, 1 Blackf. 220;Bryson v. McCreary, 102 Ind. 1; S. C. 1 N. E. Rep. 55.

Some of our cases, however, at first blush, seem to carry the rule further. It is settled by our decisions, and the authorities elsewhere, that curative or retrospective statutes may cure defects and irregularities in proceedings, even though the defects and irregularities are so flagrant as to render the proceedings, for all practical and enforceable purposes, null and void. During the late war the boards of commissioners of many of the counties in this state made appropriations, in different forms, in the way of bounties to volunteers. At the time those appropriations were made they were without authority, for the reason that while there was a law authorizing county boards to appropriate money to take care of soldiers' families, and to arm and equip military companies for home defense, there was no law authorizing such appropriations in the way of bounties to volunteers in the service of the armies of the United States. On the third day of March, 1865, an act was passed legalizing all bonds or orders theretofore issued or appropriations made by and under the authority of the boards of commissioners of the several counties for the purpose of procuring or furnishing volunteers for the armies of the United States, etc. In a number of cases that came before this court it was held that, at the time the appropriations were made, they were unauthorized by law, but were validated by the curative act of 1865, which was a constitutional and valid statute. Coffman v. Keightley, 24 Ind. 509;Board Com'rs, etc., v. Bearss, 25 Ind. 110;King v. Course, Id. 202; Nave v. King, 27 Ind. 356;Miller v. Board, etc., 29 Ind. 75;Board, etc., v. Onstott, Id. 384; State v. Buckles, 39 Ind. 272;Sithin v. Board, etc., 66 Ind. 109.

In the case last above, in speaking of the curative act of March 3, 1865, and the fact that the appropriation was made at a time when the county board was not legally in session, it was said: “The act has thus been held valid, as legalizing the orders of the boards which they had no power, even when in regular session, to make; and if the statute thus supplies the want of power, and makes valid such orders made without power, much more should it supply any defect as to the regularity or legality of the session of the board when such orders were made. * * * There can be no doubt of the power of the legislature to cure, by subsequent acts, any defect growing out of the fact that the orders of the board were made at a time when it was not in legal session.” As in line with the rulings in the above cases, see Halstead v. Board, etc., 56 Ind. 363.

It was held in at least two cases that, until the election of trustees of towns were certified as required by statute, their actions were void. Dinwiddie v. President, etc., 37 Ind. 66;Pratt v. Luther, 45 Ind. 250.

In 1875 a retrospective statute was passed validating all actions of such trustees before their elections were so certified. This act was held constitutional and valid. In the case of Gardner v. Haney, 86 Ind. 17, 29, it was said: “Before the enactment of this legalizing and curative statute this court held, with much apparent reluctance, that the acts and ordinances of a board of town trustees before the proper certified statement of their election had been made out and filed, were invalid and void. Dinwiddie v. President, etc., 37 Ind. 66;Pratt v. Luther, 45 Ind. 250. But it was competent for the general assembly, as the supreme and sovereign power of the state, to legalize and validate the acts and ordinances of the...