Read v. Yeager
| Decision Date | 15 December 1885 |
| Citation | 104 Ind. 195,3 N.E. 856 |
| Parties | Read v. Yeager, Auditor, etc., and others. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Vanderburgh superior court.
J. E. Williamson, for appellant.
W. F. Smith, for appellees.
In this case, the only question for our decision may be thus stated: Did the court below err in sustaining the separate demurrer of the appellees to the appellant's complaint for the want of sufficient facts therein to constitute a cause of action? In his complaint the appellant, Read, alleged that appellee Yeager was the auditor of Vanderburgh county, and the appellees Barker, Bauer, and Mesker were the board of commissioners, and ex officio turnpike directors of the free turnpikes of said county, of which turnpikes there were claimed to be 70 miles, more or less, in such county, which turnpikes had been wholly constructed along and upon the ordinary state and county highways of the county by the county board, during the last six years; that the county board, without authority of law, entered upon said highways, and graveled the same, and paid therefor out of the county treasury, without assessing any part of the costs against any property along any of such highways; that there was not a single gravel road or turnpike in said county that had not been so made, and wholly paid for out of the ordinary public funds of the county, in cash, upon warrants drawn upon the county treasury in the ordinary way by the county auditor; that no vote of the tax-payers, or any other act of any person or persons, was ever had or done by virtue of which the county commissioners entered upon and graveled the aforesaid highways; that the county commissioners never claimed to act by authority of any law, but well knew, during the graveling of such highways, that their acts were unauthorized by law, and void; that their proceedings in graveling highways, and paying therefor as aforesaid, became so burdensome to the tax-payers of the county that such commissioners were finally enjoined from proceeding further in that behalf at the suit of such tax-payers, and had since desisted from imposing any further taxes in that behalf. And the appellant further alleged that he resided within the corporate limits of the city of Evansville, and owned property, real and personal, within such city, but did not own any property outside of such limits; that all of his property was subject to municipal taxation, and to taxation for ordinary state and county purposes; that the appellees had combined and confederated together for the purpose of imposing illegally a tax of $30,000 upon the tax-payers of the county, and the appellee Yeager, as county auditor, had entered in the order-book of the board of county commissioners a certain false and illegal entry, a true copy of which was therewith filed as a part thereof; and the appellant charged that the appellees Barker, Bauer, and Mesker, by virtue of their offices as directors of the free turnpikes of the county, never, at any time, made any certificate of any kind on or before or subsequent to the first Monday in June, 1883, to the appellee Yeager as such auditor, or other wise, showing “the amount of money necessary for the purpose of keeping such free gravel roads in repair;” that, assuming it to be a fact that the aforesaid highways were free turnpike roads, within the meaning of the statute concerning the same, the appellant charged that the county board, ex officio directors of such free turnpikes, wholly failed and neglected to make the certificate required by section 5104, Rev. St. 1881; that appellee Yeager, acting by virtue of such illegal and false entry, was proceeding to make a levy upon all the property of all the tax-payers of the county, and was then engaged in extending upon the tax duplicate of the county the aforesaid sum of $30,000, and the other appellees were aiding him in so doing. And the appellant averred that the appellees would, if not restrained by the order of the court, proceed with their illegal acts as aforesaid, and assess against him, as well as against all other tax-payers of the county, a certain portion of the aforesaid $30,000 upon the tax duplicate of the county; and that, should this be done, a lien would thereby appear to be created against appellant's real estate to the extent of the tax so charged against him, which would be a cloud upon the title to all his real estate, and greatly and irreparably injure him in its use and enjoyment. Appellant averred that the aforesaid highways were not such free turnpike roads as are contemplated by the statute, and that the appellees had no authority to impose any tax, as they were seeking to do, for the purpose of keeping the same in repair, upon any property whatever; that, if such highways did fall within the meaning of such statute, the directors having failed to make the certificate required by such section 5104, all action by the auditor in levying a tax for the purpose of repairs was utterly void; that, at all events, the property of residents situate within the corporate limits of the city of Evansville was not subject to taxation for the purpose of keeping such roads in repair; that there was no tax due from appellant to the county of Vanderburgh or the state of Indiana for any purpose whatever; and that...
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