State ex rel. Dayton Gravel Rd. Co. v. Bd. of Com'rs of Tippecanoe Cnty.

• Decision Date: 02 April 1892
• Parties: STATE ex rel. DAYTON GRAVEL ROAD CO. et al. v. BOARD OF COM'RS OF TIPPECANOE COUNTY.
• Court: Indiana Supreme Court

131 Ind. 90

30 N.E. 892

STATE ex rel. DAYTON GRAVEL ROAD CO. et al.

v.BOARD OF COM'RS OF TIPPECANOE COUNTY.

Supreme Court of Indiana.

April 2, 1892.

Appeal from circuit court, Tippecanoe county; B. W. LANGDON, Judge.

Application for mandamus by the state of Indiana, on the relation of the Dayton Gravel Road Company and others, against the board of commissioners of Tippecanoe county. From a judgment of the court below denying the writ, plaintiffs appeal. Affirmed.

Rice & Potter and Coffroth & Coffroth, for appellants. J. B. Miller, Vinton & Vinton, and J. M. La Rue, for appellee.

COFFEY, J.

This was a suit in the Tippecanoe circuit court by the appellants against the appellee to compel the latter, by mandamus, to complete the purchase of the toll road therein described. The court sustained a demurrer to the petition, and the propriety of this ruling is presented for our decision. So much of the petition as is necessary to an understanding of the questions involved is substantially as follows: The relator the Dayton Gravel Road Company is a gravel road corporation duly organized under the laws of the state of Indiana, and has been such for more than 20 years last past, and was at and before the 15th day of October, 1890, and for more than 20 years theretofore, the owner and in the possession of a line of gravel road lying and being situate in the townships of Fairfield, Wea, and Sheffield, in said county. Said gravel road was at the time aforesaid, and still is, a toll road. On the 15th day of October, 1890, there was presented to the defendant, *** then in special session, a petition signed by more than 50 freeholders and citizens of said townships of Fairfield, Wea, and Sheffield, wherein said gravel road is located, representing to said board that said gravel road is a toll road, and asking said board to submit to the voters of said township the question of purchasing said gravel road, and to take the necessary steps provided by law for holding an election by the voters of said respective townships as to whether said gravel road should be purchased. At the time of presenting the petition the relator Jacob Burton was a citizen, freeholder, and taxpayer of Sheffield township, and the relator William S. Potter was a citizen, freeholder, and taxpayer of Fairfield township, and they yet so remain. Acting on said petition, the board, on the 10th day of October, 1890, appointed Henry D. Miller on behalf of the board, Francis Acheson on behalf of the gravel road company, and Everett B. Vawter, the surveyor of Tippecanoe county, viewers to view said road, and to determine the consideration to be paid for the same. On the 8th day of November, 1890, they made their report to the board then in special session, in which they described the road as the same is described in this petition, and fixed the consideration to be paid therefor at the sum of $10,000. On the 19th day of November, 1890, the board submitted to the gravel road company an offer to purchase said road for that sum, and required it to accept or reject in writing said offer on or before the last day of the December term of the board, and on the 13th day of December, 1890, the gravel road company did accept said offer, and filed its written acceptance thereof with said board; and thereupon the board ordered a special election to be held in the townships of Fairfield, Wea, and Sheffield on Saturday, the 24th day of January, 1891, by the voters of said townships, at which election it was ordered there should be submitted to the voters of each of said townships the question of purchasing said gravel road for the consideration above stated. It is alleged that the proper and legal notice of said election was given; that the election was held on the day named, resulting in a majority of 660 in favor of the purchase of said road, which vote was duly certified to the board by the proper election officers; that on the 29th day of January, 1891, the gravel road company tendered to the board a deed for said gravel road, and at that time said road company was not indebted to any person; that thereafter, to wit, on the 3d day of February, 1891, the board, when in special session, then and there refused to make an order for the purchase of...