State ex rel. Bd. of Com'rs of Hendricks Cnty. v. Bd. of Com'rs of Marion Cnty.

• Decision Date: 24 June 1908
• Docket Number: No. 20,918.,20,918.
• Parties: STATE ex rel. BOARD OF COM'RS OF HENDRICKS COUNTY v. BOARD OF COM'RS OF MARION COUNTY.
• Court: Indiana Supreme Court

170 Ind. 595

85 N.E. 513

STATE ex rel. BOARD OF COM'RS OF HENDRICKS COUNTY

v.BOARD OF COM'RS OF MARION COUNTY.

No. 20,918.

Supreme Court of Indiana.

June 24, 1908.

Modified opinion.

For former opinion, see 82 N. E. 482.

MONKS, J.

This action was brought to compel, by the writ of mandamus, appellee, the board of commissioners of Marion county, to perform certain alleged duties under the act approved March 7, 1905 (Acts 1905, pp. 493-496, c. 164, being sections 6816, 6822, Burns' Ann. St. Supp. 1905), for the construction of free gravel, stone, or other macadamized roads on county lines. Appellee's demurrer was sustained to the petition and alternative writ, and, appellant refusing to plead further, judgment was rendered for appellee. The only errors assigned call in question the action of the court in sustaining said demurrer.

It appears from the petition and alternative writ that a petition was filed with the board of commissioners of Hendricks county for the improvement of a highway on the boundary line between the counties of Hendricks and Marion, under said act of 1905 (Acts 1905, pp. 493-496, c. 164; sections 6816-6822, Burns' Ann. St. Supp. 1905), and that such steps were taken under said act that the board of commissioners of Hendricks county ordered that said highway be improved, the contract for said improvement was let, and the boards of commissioners of said counties met in joint session and apportioned the cost of said improvement among the townships abutting said road, as required by the said act. Afterwards the board of commissioners of Marion county entered an order that “all of its proceedings and orders made in said proceedings be vacated and annulled, and that the action taken by said board of commissioners and the board of commissioners of Hendricks county, fixing the amount to be paid by townships abutting on said road and the advertisement for the sale of bonds, as well as the contracts entered into by the board of commissioners of Hendricks county, be and the same are not concurred in by this board, and that no further proceedings be had under this petition, and that the same are now dismissed by this board at the cost of the petitioners.” It is not claimed by appellee that there was any failure to comply with the requirements of said act; but the ruling of the court in sustaining the demurrer to the alternative writ is defended on the ground “(1) that the members of the board of commissioners were not proper relators; (2) that the proposed bond issue will be unlawful, being based on the estimated cost, instead of actual expenses; and (3) that said act is unconstitutional.”

This proceeding was brought by the “state, on the relation of [setting out the names of the individual members of the board], constituting the board of commissioners of Hendricks county, against the board of commissioners of Marion county.” We think the language used made the board of commissioners of Hendricks county the relator; and, as no question is made as to said board being a proper relator, we pass to the second objection urged by appellee.

Section 4 of the act of 1905 (acts 1905, p. 495, c. 164) requires the abutting townships to pay the expense of the improvement, “including the cost of survey, printing bonds, publication and the expense of the county auditor and the members of the board of commissioners attending any meeting or meetings out of their own county, in the same manner, extent, and portions and under the same rule as now provided by law in section 7 of” the act of 1901 (Acts 1901, p. 454, c. 205). Appellee contends that, as section 6 of the act of 1901 provides that, “for the purpose of raising money to pay for such construction, the board of commissioners shall issue bonds of the county not exceeding the amount of the contract price and all expenses incurred prior to the letting of the contract,” the attempted bond issue is unlawful, because the amount thereof is in excess of the amount of the contract price and all the expenses incurred prior to the letting of the contract Section 10 of said act of 1901 (Acts 1901, p. 457, c. 205) provides for the appointment of a superintendent to supervise the construction of such roads, and that his compensation shall not exceed $2 per day, “to be paid out of the construction fund of said road or roads.” Such superintendent renders all of his services under said act after the contract is let, and according to appellee's contention the amount thereof could not be included in the bonds issued for that reason. If said act of 1901 is so construed, there would be no funds for the construction of said road or roads out of which said superintendent could be paid for his services. It is said in 1 Lewis' Sutherland on Statutory Construction (2d Ed.) p. 514, § 268: “The different sections or provisions of the same statute or Code should be so construed as to harmonize and give effect to each; but, if there is an irreconcilable conflict, the later in position prevails.” See, also, 2 Lewis' Sutherland on Statutory Construction, §§ 349, 350; Black on Interpretation of Laws, p. 168, § 74; 26 Am. & Eng. Ency. of Law (2d Ed.) 734, 735.

In determining the question presented by appellee, not only the sections of the act of 1901 referred to, but all of said act and the act of 1905, must be considered. Section 4 of said act of 1905 provides for joint meetings of the boards of commissioners after the contract is let and after the bonds are issued and sold, and for the payment of the expenses of the county auditor and the members of the board of commissioners in attending any meeting outside their own county. These expenses and the expense of printing the bonds, like the expense for the compensation of the superintendent under the law of 1901, are incurred after the contract is let, and a part of the expense of the auditor and members of the board of commissioners may be incurred after the bonds are sold. Acts 1905, pp. 495, 496, c. 164, §§ 4, 6, 7. It is clear, therefore, that the amount of the bonds is not limited to the contract price and expenses incurred before the contract is let, as claimed by appellee, and that the expenses to be incurred after the apportionment of the “total cost” of the improvement provided for in section 4 of the act of 1905 (Acts 1905, p. 495, c. 164) must necessarily be estimated.

The grounds upon which appellee insists that the act of 1905 (Acts 1905, pp. 493-496, c. 164, being sections 6816-6822, Burns' Ann. St. Supp. 1905) is unconstitutional, are as follows: “(1) It is a deprivation of the right to local self-government. (2) It delegates to the board of commissioners of one county the power, at its absolute discretion and pleasure, to levy a tax against another political subdivision of the state, when such subdivision has no voice in choosing said board, which is taxation without representation. (3) It is a violation of section 10 of article 6 of the state Constitution, which provides that: ‘The General Assembly may confer upon boards doing county business in the several counties powers of a local administrative character.’ (4) That said act is unconstitutional because the title does not fill the requirements of section 19 of article 4 of the state Constitution. (5) It is a taking of property without due process of law in violation of the fourteenth amendment of the Constitution of the United States.” Said act of March 7, 1905, provides for the improvement of unimproved highways not exceeding three miles in length on the boundary line between two counties upon the petition of 50 freeholders, voters of any township, or townships, abutting such unimproved highway, the same to be considered and determined after giving notice by the board of commissioners of either county adjoining such unimproved highway. Complete jurisdiction is given to the board of commissioners of the county before which the proceedings are commenced to order the road constructed, let the contract, etc.; and the other county is required to issue its bonds for the amount apportioned to the abutting townships in said county, levy the amount of said bonds and the interest thereon on the taxable property in said abutting townships, and collect and apply the same in payment of said bonds and interest. In this case the petition was filed before the commissioners of Hendricks county, and that board ordered the road built, and let the contract therefor.

Appellant insists that counties, like cities, “have the constitutional right of local self-government, which cannot be destroyed by the Legislature, and that said act violates this right, because the board of commissioners of Marion county had absolutely no voice in determining whether or not said road should be constructed,” and, further, “that it gave the board of commissioners of Hendricks county absolute discretion to levy a tax against the abutting townships in Marion county, which was taxation without representation”-citing State ex rel. Jameson v. Denny, 118 Ind. 382, 21 N. E. 252, 4 L. R. A. 79;City of Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93;State ex rel. Holt v. Denny, 118 Ind. 449, 21 N. E. 274, 4 L. R. A. 65;State ex rel. Geake v. Fox, 158 Ind. 126, 63 N. E. 19, 56 L. R. A. 893. The cases cited by appellant to sustain its contention as to the right of local self-government only involve that right as applied to the incorporated cities and towns of the state. Those cases recognize the twofold character of such corporations-the one public in so far as they are agencies of the state government, and the other private in so far as they are to provide for matters of purely local concern. See, also, Abbott, Mun. Corp. §§ 7, 20; Cooley, Const. Lim. (7th Ed.) 333-340, and note; 20 Am. & Eng. Ency. of Law (2d Ed.) 1131, and cases cited; note to State v. Williams, 48 L. R. A. 465-493;State v. Barker, 116 Iowa, 96, 102-105, 89 N. W. 204, 57 L. R. A. 244, 93 Am. St. Rep. 222, 226-228, and cases ...