Smith v. Board of Commissioners of County of Hamilton

• Decision Date: 25 January 1910
• Docket Number: 21,304
• Citation: Smith v. Board of Commissioners of County of Hamilton, 173 Ind. 364, 90 N.E. 881 (Ind. 1910)
• Parties: Smith et al. v. Board of Commissioners of the County of Hamilton et al
• Court: Indiana Supreme Court

90 N.E. 881

173 Ind. 364

Smith et al.

v.

Board of Commissioners of the County of Hamilton et al

No. 21,304

Supreme Court of Indiana

January 25, 1910

From Hamilton Circuit Court; Ira W. Christian, Judge.

Suit by Samuel M. Smith and another against the Board of Commissioners of the County of Hamilton, and others. From a judgment for defendants, plaintiffs appeal.

Affirmed.

Shirts & Fertig, for appellants, Hanly, McAdams & Artman attorneys for appellees in No. 21,439 (Harmon v. Gephart post, 391), by permission of the Court, filed a brief for appellants.

Gentry & Cloe, F. Winter, Smith, Duncan, Hornbrook & Smith A. C. Harris, and Miller, Shirley & Miller, for appellees.

M. B Lairy and A. C. Harris, by permission, filed a brief pro interesse suo.

C. A. Royse filed brief, by permission, as amicus curiae.

Hadley C. J. Jordan and Monks, JJ., dissent.

OPINION

Hadley, C. J.

Appellants seek to enjoin the commissioners from proceeding, under the act of 1907 (Acts 1907, p. 137, § 7712 Burns 1908), in the construction and improvement of certain highways by grading, graveling, etc., and from issuing bonds in payment thereof, and to enjoin the county treasurer from selling such bonds, and the county auditor from placing upon the tax duplicate any levy of taxes that might be made for the payment of said bonds.

The complaint is in six paragraphs, to each of which a separate demurrer for insufficiency of facts was sustained, and appellants refusing to plead further, judgment was rendered against them that they take nothing and pay the cost of the proceeding.

The action of the court in sustaining the demurrers presents the questions for decision.

Each paragraph of the complaint is so framed as to question the constitutionality of some provisions contained in the several sections of the law of 1905 (Acts 1905, p. 521), and since no other objection is made to the sufficiency of any paragraph we deem it unprofitable to set forth the several averments.

The questions debated center in the proper construction to be given to section sixty-three of the act of 1905 (Acts 1905, p. 521), as amended in 1907 (Acts 1907, p. 137, § 7712 Burns 1908), and have foundation in the sixth paragraph of complaint. The contention arises over the word "includes," occurring in the third line of the amended section. So much of the section as presents the question reads as follows: "Whenever a petition signed by fifty or more freeholders and voters of any township in any county in this State, includes any incorporated town or city in such township having a population of less than thirty thousand inhabitants, praying," etc., certain things may be done. It is seen on first blush that, if we read the lines as they are written, the word "includes" conveys the sense of absurdity. It is clearly the verb of the subject "petition," and to read that whenever a petition signed, etc., includes any incorporated town, etc., we read nothing but nonsense. It is in effect agreed that there has been a misprint, an omission or clerical error in the section as printed. It is claimed on behalf of appellants that, in conformity to legislative intent, in lieu of the word "includes," there should be read into the section the words "which township contains an incorporated town," etc. Appellees claim that the word is a misprint, or a clerical error, and for "includes" should be read "including."

The difference in these contentions is very material. The reading, as appellants would have it, follows: "Whenever a petition signed by fifty or more freeholders and voters of any township in any county of this State, which township contains an incorporated town or city in such township having a population of less than thirty thousand inhabitants, praying that any public highway may be improved, or laid out and improved," etc., the board of commissioners shall proceed to carry out the provisions of the act. If the construction contended for by appellants is right, it is then plain that the board of commissioners has power to authorize the construction of such roads in but one class of townships, namely, those containing an incorporated town or city of less than thirty thousand inhabitants, and that it has no power or jurisdiction to authorize such construction, (1) in townships having only towns or cities of thirty thousand, or more, inhabitants, and (2) in townships having no incorporated town or city. Under such a law, perhaps two-thirds of the townships of the State--and as a class doubtless the most needy--would be denied the benefits of the statute. Such a classification would be unnatural, artificial, unreasonable and special legislation, in violation of article 4, § 22, of the Constitution, which forbids the passage of local or special laws for the laying out or improvement of highways.

When the same lines are read as maintained by appellees, they are as follows: "Whenever a petition signed by fifty or more freeholders and voters in any township in any county of this State, including any incorporated town or city in such township having a population of less than thirty thousand inhabitants, praying," etc., the commissioners shall proceed to carry out the provisions of the act. Under this reading it is clear that the legislature meant by this provision to authorize a commencement of proceedings upon the petition of fifty freeholders and voters of any township, including the freeholders and voters of all incorporated towns and cities in the townships of less than thirty thousand, intending thereby to make eligible to become petitioners all freehold voters within the township, rural and urban alike, except those residing in incorporated towns and cities of thirty thousand, or more, inhabitants, which latter should neither be taxed, nor be eligible to participate in such proceeding. By this latter rendering we have, beyond question, the door of the law open to every township in the State, and a classification of a very different nature from that appearing under the view maintained by appellants. Our task then is to determine which contention is the correct exposition of the statute. To begin with, it will be useful to fix in the mind the particular district that the legislature proposed to tax to pay the cost of such improvements. This is made definite and certain by the provision of section seventy-six of the act of 1905 (Acts 1905, p. 521, § 7726 Burns 1908), which reads as follows: "For the purpose of raising money to meet said bonds and interest thereon, the board of commissioners shall annually thereafter, at the time the general tax levy is made, levy a special tax upon the property of the township or townships, including the towns and cities, if such there be, of less than thirty thousand inhabitants, in such manner as to meet the principal and interest of said bonds as they become due." We invite special attention to the word "including" in the section just quoted. It is manifestly fair that all persons who shall be called upon to contribute a ratable proportion of the cost of the enterprise should have an equal right to become petitioners.

We have reached the conclusion that the view advanced by appellees is the correct one, that "includes" should be read "including," and following are some of the reasons that have led us to this decision.

It should first be noted that the litigants occupy the common ground that something must be read into the section to convey the legislative meaning. The proposal of two remedies invokes the application of a legal principle, namely: If there are two words or sets of words that may be inserted or substituted, and render the indefinite or ambiguous phrase certain in two different senses, one of which will render the law valid and the other invalid, and there exists doubt as to which is correct, it is the duty of the court to adopt that construction which will uphold the law. All doubts must be resolved in favor of the constitutional validity of the act. Black, Interp. of Laws, § 43, Endlich, Interp. of Stat., § 178; City of Indianapolis v. Navin (1898), 151 Ind. 139, 145, 41 L.R.A. 337, 47 N.E. 525; Citizens St. R. Co. v. Haugh (1895), 142 Ind. 254, 41 N.E. 533; State, ex rel., v. Roby (1895), 142 Ind. 168, 33 L.R.A. 213, 51 L.R.A. 174, 41 N.E. 145; Robinson v. Schenck (1885), 102 Ind. 307, 1 N.E. 698; Grenada County, etc., v. Brogden (1884), 112 U.S. 261, 268, 5, 28 L.Ed. 704, 5 S.Ct. 125 S. Ct. 125, 28 L.Ed. 704; Parsons v. Bedford (1830), 3 Pet. 433, 7 L.Ed. 732; Camp v. Rogers (1877), 44 Conn. 291. Guided by this principle or rule, we will proceed. An authorized commission reported to the General Assembly of 1905 a codification of all of our existing highway laws, which report was adopted, and became the act entitled "An act concerning highways." Under the title "Gravel Roads by Taxation," the law for the construction of such roads, which had its origin in 1893 (Acts 1893, p. 196), amended in 1895 (Acts 1895, p. 143), twice in 1899 (Acts 1899, pp. 128 and 164), revised and readopted in 1901 (Acts 1901, p. 449), and supplemented in 1903 (Acts 1903, p. 294), was, in all its parts, assembled and set down in the general act concerning highways as sections sixty-two to eighty-three, inclusive, except section eighty-one. Acts 1905, p. 521.

We believe that it cannot be successfully controverted that the legislature, at least, intended throughout the origin and development of the system, that the benefits of the system should be placed within reach of every township in the State. Let us see. The first section under consideration (Acts 1905 p. 521, § 62, § 7711 Burns 1908)--the section that confers general jurisdiction upon the commissioners--provides that "the boards of commissioners of the several counties of the State...