Jones v. Cullen

• Court: Indiana Supreme Court
• Writing for the Court: Jordan, J.
• Citation: Jones v. Cullen, 142 Ind. 335, 40 N.E. 124 (Ind. 1895)
• Decision Date: 02 April 1895
• Docket Number: 16,456
• Parties: Jones, Treasurer, Etc., v. Cullen

40 N.E. 124

142 Ind. 335

Jones, Treasurer, Etc., v. Cullen

No. 16,456

Supreme Court of Indiana

April 2, 1895

Petition for Rehearing Overruled October 18, 1895.

From the Marion Superior Court.

The judgment affirming the one of the special term is reversed at the cost of appellee, and the cause is remanded to the trial court, with instructions to sustain the demurrer to the complaint and to each specification, and vacate the judgment and decree, and for further proceedings in accordance with this opinion.

B. K Elliott and W. F. Elliott, for appellant.

A. C Harris, W. A. Cullen and J. D. Megee, for appellee.

OPINION

Jordan, J.

This was an action commenced by the appellee, in the circuit court of Rush county, on the 16th day of February, 1891, to enjoin appellant, as the treasurer of that county, from collecting a tax levied upon the lands of appellee and others, to aid in the construction of the Cincinnati, Wabash and Michigan Railway.

Upon a change of venue the cause was tried in the Marion Superior Court, and resulted in a judgment perpetually enjoining appellant from collecting the tax in question, and adjudging the same to be null and void. The following from the record appears to be a correct summary of the facts in the cause:

On March 30, 1887, a petition in due form signed by twenty-five freeholders and over, of the township, in accordance with section 4045, R. S. 1881, and section 5340, R. S. 1894, was presented to the board of commissioners of said county, asking an appropriation of fifty thousand dollars as a donation to said railway company. Said petition was acted upon by the board, and an order made on that day fixing the 4th day of May, 1887, for an election to enable the voters of the township to decide whether the donation should be made. The election was held pursuant to the order, and resulted in a majority of the votes being cast for the appropriation.

At the regular June term, 1887, a return of said election was made to the board, and the donation of said sum to the railway company was made; and, for the purpose of raising the sum donated, a special tax of one per cent. upon the real and personal property of the several owners thereof, in the township, subject to taxation for State and county purposes for the year 1887, was levied by the board, to be collected as other taxes; and the auditor was directed to levy and assess upon the tax duplicate to the several owners of real and personal property therein, a tax of one per cent. for the year 1887, to raise a part of said sum voted and donated as aforesaid. The residue thereof, not to exceed one per cent. was ordered to be levied and assessed in the same manner, at the ensuing June session, 1888, of said board. The collection of said levies and assessments was ordered suspended until the further order of the board.

No further proceedings were had in the matter until the 17th day of June, 1890, when the board, as recited in the record entry then made, on account of said railway company having resumed the prosecution of its work in the township, and being engaged in prosecuting it to a speedy completion, revoked and set aside its said order of suspension of the collection of the taxes, and directed the auditor of said county to assess and apportion to the several owners of real and personal property subject to taxation in the township for the year 1887, a tax of one per cent. to raise the sum of $ 23,224.95, and to assess and apportion the residue of said donation, or so much thereof as not to exceed one per cent. upon the taxables, to the several owners of real and personal property subject to taxation in the township, as shown upon the tax duplicate for the year 1888; said taxes to be collected by installments in like manner as are State and county taxes.

The auditor complied with the order of the board, and the amount assessed and charged against the lands and lots of appellee amounted to $ 306.00, which amount appellant threatens to enforce against the property of the former.

Appellee was, on March 30, 1887, the owner of the lands and lots upon which the railroad tax has been levied, but did not join in the petition heretofore mentioned. The proper notice for the election was given by publication, in two papers of general circulation, printed and published in Rushville, the county seat, and also by the distribution of printed hand-bills.

The errors presented and argued by the learned counsel for appellant, are upon the action of the court in overruling the demurrer to certain specifications of the complaint, and in overruling a motion for a new trial. The complaint is quite voluminous, and contains eleven specifications. It and each of its specifications were assailed by a demurrer, which was overruled to the 1st, 2nd, 4th, 7th, 8th, and 9th, and sustained to the others.

In actions of the character like the one at bar, it is the proper practice as recognized by the decisions of this court, to demur to each specification. Each is considered as a separate paragraph, and must be good within itself, and one can lend no aid in upholding the other. Hilton v. Mason, Treas., 92 Ind. 157, and cases cited; Hill v. Probst, Treas., 120 Ind. 528, 22 N.E. 664.

The first and second specifications are the essential ones in the case, and are so considered by the appellant and appellee herein, and they are substantially as follows: "Plaintiff says that the tax so pretended to be levied and charged against him and his said property is absolutely null and void for the following reasons:

"First--The pretended meeting of the board of county commissioners on the 30th day of March, 1887, and all business pretended to be transacted by them, was wholly illegal and void for the reason that the board was not in general session, the law prescribing another and different time for the regular meeting of boards of commissioners in counties wherein the population exceeds ten thousand and does not exceed thirty thousand; and was not legally in special session because no notice was given to the members of the board, or to any of them, by the auditor of Rush county, that said board would meet in special session on the said 30th day of March, or on any previous day from which the board had adjourned to that day, nor by any officer of Rush county, authorized by law to give such notice, nor was the board at any time in special session pursuant to a notice of the county auditor or any officer of Rush county between the termination of the regular March session, and the said 30th day of March, 1887; and that said board only pretended to be in session on the 30th day of March, pursuant to an adjournment order entered of record on the 16th day of March, 1887, at which time they were not in special session pursuant to any notice from the auditor of Rush county, or any other officer authorized by law to give such notice; that no notice whatever was served or given to the members of said board, or to a majority of said members, to meet in special session on the 30th day of March, or any previous day, between the end of the regular session, and the said 30th day of March, at which time the petition of M. Sexton, and others herein set out, was presented to said board, and the order made by said board ordering the election in said Rushville township, appropriating the sum herein set out to the Cincinnati, Wabash and Michigan Railway Company.

"Second--That the pretended proceedings above set out of date, June the 17th, 1890, are null and void, for the reason that the said commissioners' court of said county was not on said day either in regular or special session, and the proceedings so had on said day are null and void; and the auditor had no authority to compute or charge against this plaintiff or his property the said tax so by him afterwards done, or any part thereof; nor has the treasurer any authority in law to enforce the collection thereof, against him or his said property or any part thereof."

The principal contentions of appellant, and the only ones which we deem necessary to set out in this opinion, are as follows:

"First--Where the members of a tribunal, such as the board of commissioners in this State, may convene in session upon notice from a ministerial officer, and they do assemble in session and transact business as if convened in due form of law, their judgments are not void.

"Second--Where there is authority to convene upon notice, and the sessions of the tribunal are not confined to times fixed by positive law, the tribunal in convening in session necessarily adjudicates upon its own organization, its own authority to hold the session, as well as upon all other jurisdictional facts, and its judgment is not vulnerable upon a collateral attack, however erronous it may be.

"Third--The board of commissioners not only had jurisdiction of the general subject, but it had, also, exclusive original jurisdiction of the whole subject, so that its decision as to its authority to hold the special session is that of a permanent tribunal of exclusive original jurisdiction, and hence not vulnerable to a collateral attack.

"Fourth--The special session was held by rightful members of the tribunal, and not by intruders and usurpers. And as there is no time fixed by law for holding special sessions, but such sessions may be held upon notice, the judgment of the board upon the validity of its session is conclusive.

"Fifth--That there is no equity shown in the action, and therefore no right to an injunction."

Upon the other side the learned counsel for appellee contend that the board of commissioners on March 30, 1887, when the petition in controversy was presented to that body, and also on June 17, 1890, when the tax was ordered to be placed upon the duplicate,...