State, ex rel. Davis v. Board of Commissioners of the County of Newton

• Citation: 74 N.E. 1091,165 Ind. 262
• Decision Date: 30 June 1905
• Docket Number: 20,652
• Parties: State, ex rel. Davis et al., v. Board of Commissioners of the County of Newton et al
• Court: Supreme Court of Indiana

74 N.E. 1091

165 Ind. 262

State, ex rel. Davis et al.,

v.

Board of Commissioners of the County of Newton et al

No. 20,652

Supreme Court of Indiana

June 30, 1905

From Newton Circuit Court; Charles W. Hanley, Judge.

Suit by the State of Indiana, on the relation of Benjamin F. Davis and others, against the Board of Commissioners of the County of Newton and others. From a decree for defendants, plaintiff appeals.

Affirmed in part, reversed in part.

Herman C. Rogers, E. E. Pierson and Merrill Moores, for appellant.

William Commings, E. B. Sellers and A. C. Harris, for appellees.

OPINION

Montgomery, J.

This suit was brought by appellant against appellees to enjoin the letting of a contract for the construction of a court-house. The allegations of the complaint were substantially as follows: That the relators are legal voters and taxpayers of Newton county, and that on the 7th day of March, 1904, the Newton County Council met in special session at Kentland, the county seat, for the purpose of passing on a requisition filed by the board of commissioners of said county, asking said council to authorize the issuance and sale of the bonds of said county, the proceeds to be used in erecting a court-house at the county seat, and that due notice of the time, place and purpose of said meeting was given; that no appropriation for the building of a court-house was made at said meeting; that said county council met in regular session on the 6th and 7th days of September, 1904, and that appropriations were made on estimates submitted for various purposes, set out in detail, but no estimate was submitted and no allowance was made at said meeting for the building of a court-house; that on the 17th day of December, 1904, said Newton County Council duly met for the purpose of appropriating money and authorizing the issuance of bonds in the sum of $ 25,000 for the building of a new court-house at Kentland, and that at said special meeting said county council did appropriate said sum for such purpose, but said appropriation was wholly illegal, contrary to law and void; that no estimates for the construction of a court-house were submitted, and that no emergency existed at the time of said special meeting; that the Board of Commissioners of the County of Newton is about to let a contract for the erection of a court-house, in pursuance of the allowance made by the county council at the special session held on December 17, 1904, and that, if such contract should be let, the relators, as taxpayers of said county will be subjected to a tax for the erection of said building which tax will be contrary to law and inequitable, and the relators will therefrom suffer irreparable damage. Wherefore they pray that said board of commissioners be enjoined from letting such contract, and for all other proper relief.

The demurrer of appellee Newton County Council was sustained to the complaint, and appellant duly excepted. The demurrer of appellee board of commissioners was overruled, and an answer filed (1) in denial of the averments of the complaint, and (2) setting out in full the record and proceedings of the county council, by virtue of which said appellees claimed the right to proceed. Appellant's demurrer to the second paragraph of answer was overruled, and the issues were closed by a reply in denial. A trial resulted in a finding and judgment in favor of appellee board of commissioners.

The assignment of errors challenges the decision of the court below in sustaining the demurrer of the county council to the complaint, in overruling appellant's demurrer to the second paragraph of answer, and in overruling appellant's motion for a new trial. The ruling of the court in sustaining the demurrer of the county council to the complaint has not been urged as error, and was clearly right.

The conclusion reached upon the merits of the case makes it unnecessary to consider the sufficiency of the affirmative paragraph of the answer, and the error, if any, in holding this answer sufficient, was harmless.

The controlling facts, as shown by the record, are as follows: A special session of the Newton County Council was duly convoked on the 7th day of March, 1904, at which a requisition of the board of commissioners was presented, asking authority to issue bonds of the county to the amount of $ 25,000 for the purpose of building a new court-house, and that an appropriation of said sum be made for such purpose. This request was denied. No further action was taken by the county council until the 17th day of December, 1904, when another special meeting was convoked, upon proper notice given by the auditor. The minutes of this meeting, after showing the members present and the notices given, read as follows: "And now said county council find that due and legal notice of said meeting has been given as provided by law, and on said December, 1904, comes, also, S. C. Jones, auditor, and presents the requisition of the Board of Commissioners of the County of Newton, Ind., asking that said board of commissioners be authorized to borrow money and issue the bonds of said Newton county in the sum of $ 25,000 for the purpose of erecting a court-house at Kentland, the county seat of said county, which requisition reads as follows: 'State of Indiana, Newton County. Office of Board of County Commissioners. To the County Auditor: The undersigned board of county commissioners of said county respectfully submit an estimate of expenditures necessary to be made by the board in the construction of county buildings, to wit: (1) For the construction of a court-house, $ 25,000; and they say that an emergency exists for the making of such an appropriation, to the end that the public records be properly protected and the public business of the county properly conducted. Dated at Kentland, Indiana, November 10, 1904. D. Hess, Geo. F. Merchant, Commissioners of Newton county, Indiana.'

"And after careful consideration of the matter by the council, councilman Hershman moved that the request set out in said requisition of said board of commissioners be granted, which motion was seconded by councilman Chancellor. The motion being put on its passage, those voting in the affirmative were councilmen Hershman, Hartley, Chancellor, Herriman, Tyler and Ewen. Councilman Roush voting in the negative. Said motion, being supported by more than two-thirds of the council, was, by the president, declared carried.

"Be it therefore ordered by the Newton County Council that the board of commissioners of Newton county, Indiana, be and they are hereby authorized to borrow $ 25,000, the same to be used for the purpose of erecting a court-house on the court-house square in the town of Kentland, the county seat of Newton county, Indiana. And the said board of commissioners are further authorized and directed to issue negotiable coupon bonds of the county in the sum of $ 25,000. * * * It is further ordered that the money so borrowed and derived from the sale of said bonds be, and the same is hereby, appropriated for the purpose of erecting a court-house in said town of Kentland, the county seat of Newton county, Indiana. * * * Ordered that the council do now adjourn." Signed by the members of the Newton County Council.

On the 2d day of January, 1905, the board of commissioners of Newton county entered into a written contract with an architect for plans and specifications for a court-house, and for the superintendence of its construction. On February 6, 1905, the board of commissioners approved the plans and specifications prepared and submitted by the architect, and directed advertisement for sealed proposals for the erection of said building to be made, such proposals to be received on the 3d day of April, 1905.

The provisions of the statute of 1899, entitled, "An act concerning county business" (Acts 1899, p. 343 §§ 5594z, 5594a1, 5594e1, 5594l1, 5594t1 Burns 1901), pertinent to the question under consideration, are as follows: "Section 20. All of the above provided for estimates when so prepared, other than the one prepared by the county auditor, shall be presented to said auditor on or before the Wednesday following the first Monday in August, and they, together with the one so prepared by him, shall be kept on file in his office subject to inspection by any taxpayer of the county from the time they are filed. The county auditor shall give notice by publication one time in each of two leading newspapers of general circulation, printed and published in the county, if there be such, representing respectively the two political parties casting the highest number of votes in such county at the last preceding general election, of the aggregate amount of each of said estimates before their presentation to the council. At the regular annual meeting of the council on the first Tuesday after the first Monday in September, the auditor shall present all of said estimates thereto, and may make such recommendation to the council with reference to the estimate as may to him seem proper. And it shall be his duty before such meeting of the council to prepare an ordinance in proper form, to be adopted by the council, fixing the rate of taxation for the taxes to be collected in the ensuing calendar year, and also an ordinance making an appropriation by items for such calendar year for the various purposes for which all of the above estimates are required. The council at said meeting shall act upon such ordinances, and by adopting the same or amended or substituted ordinances fix the tax...