Jussen v. Board of Comm'rs of Lake County

• Decision Date: 27 May 1884
• Docket Number: 11,282
• Parties: Jussen et al. v. The Board of Commissioners of Lake County et al
• Court: Indiana Supreme Court

95 Ind. 567

Jussen et al. v. The Board of Commissioners of Lake County et al

No. 11,282

Supreme Court of Indiana

May 27, 1884

From the Lake Circuit Court.

The judgment is affirmed, with costs.

J Kopelke, for appellants.

J. B Peterson and J. B. Cohrs, for appellees.

OPINION

Howk J.

The record of this cause shows that on the 19th day of April, 1881, a petition signed by more than twenty-five citizens and freeholders of Hobart township, in Lake county, was presented to the board of commissioners of such county, praying therein that an appropriation of ten thousand dollars might be made to aid the "New York and Chicago Railway Company" (or its successor by consolidation), a corporation duly organized under the laws of this State, to construct its railroad in and through said Hobart township. Upon the presentation and submission of this petition the board of commissioners of Lake county then and there found that the petition was signed by more than twenty-five freeholders of Hobart township, that the said railway company was duly organized under the laws of this State, that the prayer of such petition ought to be granted, and that an election ought to be ordered and held in such township as prayed for in the petition. Thereupon, on the same day, the county board ordered that the polls be opened at the usual voting place in Hobart township for the purpose of taking the votes of the legal voters of such township, on May 30th, 1881, on the subject of such appropriation to said railway company, or its successor by consolidation, to aid in the construction of its proposed railway in and through Hobart township.

The election was held accordingly, and a proper canvass of the votes, subsequently had, showed a majority of twenty-eight votes in favor of such railroad appropriation. Thereafter, at the regular June session, 1882, of such board of commissioners of Lake county, when the board was about to take action on the aforesaid petition and the levy of the tax therein prayed for, thirty named persons and the Pittsburgh, Fort Wayne and Chicago Railroad Company, representing themselves to be taxpayers of Hobart township, appeared by their attorneys and filed their objections in writing to the levy of such tax. But the board of commissioners then and there overruled such written objections, and ordered that a tax of one per centum be levied on all the taxable property within such township, to aid the said railway company in the construction of its proposed railroad in and through Hobart township.

The transcript further shows that on the 5th day of July, 1882, an appeal bond was taken and approved by the auditor of Lake county, executed by Edmund Jussen, Valentine Behneke, Valentine Fabian, Louis Yoergler and Ernst Passon, with William Sholler as their surety, and payable to the board of commissioners of Lake county, and the New York and Chicago Railway Company, and an appeal taken by the principals in such bond from the order of the county board to the circuit court of the county. Afterward, on the 7th day of July, 1882, the Pittsburgh, Ft. Wayne and Chicago Railway Company filed its appeal bond payable to the county board, to Hobart township, to the New York and Chicago Railway Company, and to each and all of the petitioners for such appropriation, and took an appeal from the order of the county board to the circuit court. In some manner, probably by the mistake of the clerk, these two appeals seen to have been erroneously docketed in the circuit court as one and the same cause. Section 5777, R. S. 1881.

Afterwards, at the April term, 1883, of the court below, the Pittsburgh, Ft. Wayne and Chicago Railway Company, by its counsel, dismissed its appeal. The effect of this dismissal was, of necessity, to dismiss from the record and from court all the defendants in the appeal of such railway company, except the board of commissioners of Lake county and the New York and Chicago Railway Company, who were also defendants in the appeal of Edmund Jussen et al. Thereafter, the defendants' written motion to strike out the objections in writing, filed by the appellants before the county board, to the levy of the tax voted for, was sustained by the court. Thereupon, the court rendered judgment against the appellants for the appellees' costs.

In this court, the first error assigned by appellants is the overruling of their motion to strike out the names of all the parties defendants from the docket and records in this cause, for the want of interest in the subject-matter thereof, except Hobart township. The only defendants named by the appellant, in their appeal from the order of the county board to the circuit court, were the board of commissioners of Lake county and the New York and Chicago Railway Company. The appellants did not make Hobart township a party defendant in their appeal. It is true that after they had taken their appeal, a separate appeal was taken from the same order of the county board by the Pittsburgh, Ft. Wayne and Chicago Railway Company, in which latter appeal Hobart township and the petitioners for the levy of the tax were named as parties defendants, in addition to the county board and the New York and Chicago Railway Company. It is true, also, that the two appeals seem to have been docketed in the circuit court as one appeal, but they were never consolidated by any order of the court appearing in the record. When, therefore, the Pittsburgh, Ft. Wayne and Chicago Railway Company dismissed its appeal, of course, Hobart township and the other defendants therein, who were not defendants in the appellants' appeal, were dismissed from the docket and records of this cause. If the court had sustained the appellants' motion to strike out, they would have found themselves, after such dismissal, in the anomalous position of waging a lawsuit without any defendants thereto.

This court has often held that there is no available error in overruling a motion to strike out part of a pleading, for the reason that, at most, it can only leave surplusage in the record, which does not vitiate that which is good. City of Crawfordsville v. Brundage, 57 Ind. 262; Doss v. Ditmars, 70 Ind. 451; Morris v. Stern, 80 Ind. 227. So, also, it may be said that the error, if such it be, in overruling the plaintiffs' motion to strike out the names of defendants, upon the alleged ground that they have no interest in the subject of the suit, is at most a harmless error, for the reason that the presence of superfluous defendants in the suit can not prevent the plaintiff from obtaining such relief, as he is entitled to, against the other defendants.

The next error complained of is the sustaining of appellees' motion to strike out the objections and exceptions filed by the appellants, before the county board, to the levy of the tax. These objections and exceptions were twelve in number, and will be considered and passed upon in their enumerated order. It is first objected that the special session of the county board, in April, 1881, at which the petition for the appropriation was presented by the freeholders of Hobart township, "was irregular and convened without any authority of law." This objection is itself objectionable, for the reason that it failed to point out wherein the special session was irregular, and without authority of law. Waiving this point, however, we learn from the brief of appellants' learned counsel that the special session of the county board was illegal, and its acts were consequently void, for the following reasons:

1. Because the members of the county board were served with written notices of the special session by the auditor in person, and not "by summons issued to and served by the sheriff;" and,

2. Because there was no emergency existing requiring the county board to meet in special session, upon shorter notice than "at least six days."

The statutory provisions in relation to special sessions of county boards have been in force, without change, since October 10th, 1863, and have often been the subject of judicial comment and construction. Sections 5737 to 5739, R. S. 1881. In Wilson v. Board, etc., 68 Ind. 507, the proper construction of these statutory provisions was fairly presented for our consideration. After quoting the sections of the statute, the court there said:

"Under these provisions, it will be seen that the county auditor is clothed with the power to call 'special sessions' of the county board, whenever the public interests require it, of which special sessions at least six days' notice must be given, unless, in the opinion of the auditor, an emergency exists requiring a shorter notice, and in that case the auditor may fix the time at his discretion. It seems to us that the General Assembly of this State, in and by these statutory provisions, have committed to the county officers named in said act, and first to the county auditor, the discretionary right, power and duty to determine finally and conclusively, in each particular case, these three questions:

"1. Whether the public interests require a special session of the board of commissioners;

"2. Whether the facts of the particular case will authorize and justify the giving of at least six days' notice of such special session; and,

"3. If not, and in the opinion of such county auditor first, or other officer named in their order, an emergency shall exist requiring a shorter notice, what notice shall be given, and when such special session shall begin.

"When the county auditor, or other county officer acting as authorized by the provisions of the statute, shall have considered, passed upon and determined any or all of these three questions, we think that the decision of such auditor or other officer, in regard thereto, is and ought to be...