McDonald v. State ex rel. Keaton

• Decision Date: 13 May 1914
• Docket Number: 22,347
• Citation: 105 N.E. 148,181 Ind. 609
• Parties: McDonald, Treasurer, v. State of Indiana, ex rel. Keaton, Commissioner
• Court: Indiana Supreme Court

105 N.E. 148

181 Ind. 609

McDonald, Treasurer, v. State of Indiana, ex rel. Keaton, Commissioner

No. 22,347

Supreme Court of Indiana

May 13, 1914

From Shelby Circuit Court; Albert F. Wray, Special Judge.

Action in mandamus by the State of Indiana, on the relation of Albert R. Keaton, as drainage commissioner, against William A. McDonald, as treasurer of Shelby County. From a judgment for relator, the defendant appeals.

Reversed.

Meiks & Hack and A. E. Lisher for appellant.

D. L Wilson, for appellee.

OPINION

Spencer, J.

This is an action in mandamus wherein the relator seeks to compel appellant, as treasurer of Shelby County, to collect certain assessments made for the construction of a public drain in said county. The trial court made a special finding of facts from which it appears that on January 27, 1910, Elbert V Morrison and other landowners in said county filed their petition in the Shelby Circuit Court, asking for the drainage and reclamation of certain wet lands owned by said petitioners and further alleging that said lands could not be drained without affecting the lands of others. Such further proceedings were had in said court as resulted in the issuance of an order therefrom, declaring the proposed work established and approving the assessments made by the drainage commissioners. Thereupon appellee, as commissioner of construction, twice advertised for bids for the construction of said work. In each instance, however, the bids received were in excess of the total benefits assessed against the lands involved, and were rejected by appellee. He then reported to the circuit court that in his opinion the proposed ditch could not be constructed for the total amount of benefits assessed and that when he had collected sufficient funds to pay the costs and expenses of the proceedings, he would pay the same and get the matter out of court. No part of said drain was ever constructed and the same has been wholly abandoned. This action was instituted to compel the collection of a sufficient per cent of the benefits assessed to cover the costs of the proceedings and, on the facts as above stated, the trial court concluded, as a matter of law, that appellee was entitled to the relief asked. This appeal follows.

Appellant takes the position that after the circuit court had entered an order declaring the drain established and had appointed appellee as commissioner of construction, the drainage statutes did not authorize the latter to abandon the improvement and require the landowners affected to pay the costs of the proceedings; that it is one thing for the commissioner of construction to file a complaint showing that he is constructing the drain in question but that the parties whose lands are benefited have not paid their assessments and ask that the same be collected by law, and quite another thing when such commissioner alleges that he has abandoned the...