Spaulding v. Mott

• Decision Date: 26 January 1906
• Docket Number: 20,572
• Citation: 76 N.E. 620,167 Ind. 58
• Parties: Spaulding et al. v. Mott et al
• Court: Indiana Supreme Court

76 N.E. 620

167 Ind. 58

Spaulding et al. v. Mott et al

No. 20,572

Supreme Court of Indiana

January 26, 1906

Rehearing Denied June 21, 1906.

From Tipton Circuit Court; James F. Elliott, Judge.

Gravel road proceedings by Asa E. Mott and others, against which Allen F. Spaulding and others remonstrate. From an order establishing such road, remonstrants appeal.

Affirmed.

Oglebay & Oglebay, for appellants.

Beauchamp Mount & Procter and Coleman & Carter, for appellees.

OPINION

Monks, J.

This proceeding was brought by appellees before the Board of Commissioners of the County of Tipton at the June term, 1904 of the said board, under the act of 1903 (Acts 1903, p. 255) to improve by grading, draining and graveling a public highway in said county which runs parallel with the west line of said county and one-fourth of a mile therefrom. Appellants appeared and filed separate remonstrances, and such proceedings were had that the board ordered the improvement to be made. On appeal to the court below certain assessments were modified and damages were allowed to two of the remonstrants. The controlling question in this case is the proper construction of said act of 1903. The board of commissioners and the court below held that under said act the taxing district was confined to Tipton county, and that no lands in Clinton and Howard counties could be assessed with benefits, although within two miles of the highway to be improved.

Appellants insist that (1) "the taxing district extends two miles from the highway improved, regardless of county lines; (2) that if it does not, no highway can be improved under said act of 1903, if any part of it is less than two miles from a county line, because all the lands within two miles, if benefited, must be assessed with benefits under said act; (3) if the construction given said law by the court below is correct, it is special and class legislation, for the reason that in one part of the county all the lands within two miles of the highway to be improved must be assessed, if benefited, while in another part of the county only part of the land within two miles of the improvement which is benefited can be assessed with benefits, thus giving the citizens of one portion of the county the advantage over those residing in another part of the county."

If appellants' construction of said act of 1903, as to the taxing district is correct, then no highway, any part of which is less than two miles from the state line, could be improved thereunder, because the legislature could not authorize the assessing of lands in another state, even if benefited and within two miles of the proposed improvement. And under appellants' contention any law would be unconstitutional which attempts to authorize the improvement of a highway so near the state line that the taxing district is thereby reduced at either end or on either side.

The manner of giving notice of the filing of the petition and of time and place of hearing the report of the viewers, as well as the procedure under said act, clearly indicate that it was the legislative intent that the taxing district should not include any lands outside the county in which the highway to be improved is located.

There is another reason for the conclusion that this was the legislative intent in the enactment of the act of 1903. The act of 1877 (Acts 1877, p. 82) provides for the construction of gravel roads by the assessment of benefits on the lands benefited within two miles of the highway to be improved, but, like the act of 1903, in controversy here, there is no express provision limiting the taxing district to the county in which the highway to be improved is located. Said act of 1877 has been, since it took effect--a period of more than twenty-eight years--uniformly construed and enforced by the officers acting under its provision, without question, as authorizing the improvement of highways within less than two miles of the county line, and as limiting the taxing district to the county in which the proceedings were pending before the board of commissioners.

In State Board, etc., v. Holliday (1898), 150 Ind. 216, 42 L. R. A. 826, 49 N.E. 14, this court said on page 229: "Black, Interp. of Laws, p. 221, says: 'The executive and administrative officers of the government are bound to give effect to the laws which regulate their duties and define the sphere of their activities, and, in so doing, they must necessarily put their own construction upon such acts. When the courts shall have interpreted the laws, these officers are of course bound to accept and abide by their decisions. But in advance of such judicial construction, they must interpret the statutes for themselves, and to the best of their own abilities. * * * But it is a rule, announced by the Supreme Court of the United States, at an early day, and which has since been followed in numerous cases both in the federal and state courts, that the contemporaneous construction of a statute by the officers who have been called upon to carry it into effect, made the basis of their constant and uniform practice for a long period of time, and generally acquiesced in, and not questioned by any suit brought, or any public or private action instituted, to test and settle the construction in the courts, is entitled to great respect, and if the statute is doubtful or ambiguous such practical construction ought to be accepted as in accordance with the true meaning of the law, unless there are very cogent and persuasive reasons for departing from it.' To the same effect is Cooley, Const. Lim. (6th ed.), 51-58." See, also, City of Terre Haute v. Evansville, etc., R. Co. (1897), 149 Ind. 174, 186, 37 L. R. A. 189, 46 N.E. 77, and cases cited; City of Indianapolis v. Navin (1898), 151 Ind. 139, 147, 41 L. R. A. 337, 47 N.E. 525, and cases cited.

Sutherland, Stat. Constr., § 311, says: "The contemporary and subsequent action of the legislature in reference to the subject-matter has been accepted as controlling evidence of the intention of a particular act." The same author (§ 333) says: "It is presumed that the legislature is acquainted with the law; that it has a knowledge of the state of it upon the subjects upon which it legislates; that it is informed of previous legislation and the construction it has received." The presumption is that the legislature knew of said construction of the act of 1877 when they passed the act of 1903. State Board, etc., v. Holliday, supra, pages 233, 234, and authorities cited. It is also said in Sutherland, Stat. Constr., § 333: "If it were intended to exclude any known construction of a previous statute, the legal presumption is that its terms would be so changed as to effectuate that intention." The provisions of the act of 1903, supra, so far as concerns the taxing district, are substantially the same as those in the act of 1877, supra, and no words used in said act show any intention to change the construction from that given to the act of 1877. The fact that the law of 1877 (§ 6859 Burns 1901, § 5095 R. S. 1881) provides that the board of commissioners shall not make the order that the improvement be made "until a majority of the resident landholders of the county whose lands are reported as benefited and ought to be assessed, and also the owners of a majority of the whole number of acres of all lands that are reported as benefited and ought to be assessed," while section two of the act of 1903 contains no such provision, but only requires that the petition be "signed by a majority of the resident landholders of the county whose lands abut upon the proposed improvement," does not show a legislative intent that the taxing district provided in the act of 1903 should be in any way different from what it was under the act of 1877.

Appellants cite Crist v. State, ex rel. (1884), 97 Ind. 389, and State, ex rel., v. Elliott (1904), 32 Ind.App. 605, 70 N.E. 397, which hold that under certain drainage laws where a ditch is constructed in one county, land located in another county receiving special benefits from the construction of said ditch may be assessed with such benefits, as sustaining their contention in this case. Said acts provide for the construction of a drain extending into two or more counties as a unit throughout its whole extent and under one authority, and authorize the assessment of all the lands in said counties benefited by said ditch, while under the act of 1903, if the highway to be improved extends into more than one county, the same must be improved in each county by separate and independent proceedings, neither depending in any manner upon the other. Acts 1903, p. 255, § 18. The authorities cited are not in point here. Thus construed as to taxing districts we do not think said act unconstitutional.

The act of 1865 (Acts 1865, p. 90) provided that for the construction of a gravel road "all real estate outside of the corporate limits of any town or city incorporated as such three-fourths of a mile each side of the proposed road, shall be taxed to construct the said road in proportion to the appraisement of the realty that may be on the auditor's books," and that each owner shall pay his proportion of the cost of the proposed turnpike according to the amount of the assessment of the real estate within the prescribed limits. It will be observed that under this law the taxing district did not include any land at the ends of the proposed road, even if the same were benefited as much as or more than lands in the taxing district which could not be taxed therefor. It is evident that, if a highway to be improved under said act was less than three-fourths of a mile from the county line, no tax could be levied on land in the adjoining county, although within three-quarters...