State ex rel. Linthicum v. Bd. of Com'rs of Vanderburgh Cnty.

• Decision Date: 29 March 1911
• Docket Number: No. 21,690.,21,690.
• Parties: STATE ex rel. LINTHICUM et al. v. BOARD OF COM'RS OF VANDERBURGH COUNTY et al.
• Court: Indiana Supreme Court

175 Ind. 400

94 N.E. 716

STATE ex rel. LINTHICUM et al.

v.BOARD OF COM'RS OF VANDERBURGH COUNTY et al.

No. 21,690.

Supreme Court of Indiana.

March 29, 1911.

Appeal from Superior Court, Vanderburgh County; C. A. De Bruler, Judge.

Mandamus by the State, on the relation of Edward Linthicum and others, against the Board of Commissioners of Vanderburgh County and others. From a judgment for defendants, relators appeal. Affirmed.

Funkhouser & Funkhouser and Robinson & Stilwell, for appellants. George A. Cunningham and Daniel H. Ortmeyer, for appellees.

MORRIS, J.

This was a mandamus proceeding by appellants against the board of commissioners of Vanderburgh county and others. It involves the right of the county to vote aid to a bridge company, for the construction of a bridge over the Ohio river, under section 4405, Burns' Stat. 1908; the same being the act of March 5, 1881, as amended by the act of March 9, 1889. Acts 1881, p. 5; Acts 1889, p. 266. So much of the act as applies here reads as follows: “Section 1. That counties wherein any bridge over any river or stream forming the boundary of the state of Indiana, or any part thereof, may be located, or any of the townships, of such counties, are hereby authorized to take stock in or make donations to such bridge company in aid of the construction of such bridge by complying with the provisions, so far as the same are applicable, of an act approved May 12, 1869, being sections 4045 and 4063, inclusive, of Revised Statutes, giving to counties and townships authority to take stock in and make donations in aid of the construction of railroads.”

The act of May 12, 1869, as originally enacted, authorized counties, or townships thereof, to aid in the construction of railroads, either by making donations or taking stock. Acts 1869, special session, p. 92. This act was so amended in 1875 as to authorize townships only to so aid. Acts 1875, special session, p. 70. Sections 4045 to 4063, inclusive, Revised Statutes 1881, designated in the above act of 1889, embrace the above-mentioned act of May 12, 1869, as amended by the said act of 1875, and other amendments passed before 1881. These 19 sections (4045 to 4063, supra) contain no authority to counties to give aid, except by the provision made in section 4059, which authorizes the board of commissioners, under certain conditions, to pay out of the county treasury an amount equal to the special tax voted by a township, pending its collection, after levy, on the taxables of the township. The sum so advanced was to be refunded when collected. Section 4058 authorized the board of commissioners to take stock in the company, in the name of the township voting the aid, and to make proper contracts with the company relative to freight rates, location of depots, etc., pursuant to the terms of the petition for voting the aid by the township. Section 4056 required the county board to make the levy of the special tax voted on the township taxables.

Appellees claim that the act of 1881, as amended in 1889, does not authorize aid by counties to bridge companies. If this interpretation of the law is correct, the judgment of the trial court should be affirmed, because this appeal grows out of the refusal by the board of commissioners of Vanderburgh county to submit the question of aid by the entire county, to the voters thereof, for the construction of a bridge over the Ohio river.

[1][2] It must be presumed that the General Assembly of 1889 was acquainted with the provisions of the act of May 12, 1869, of the amendatory act of 1875, and of sections 4045 to 4063, inclusive, of the Revision of 1881. State, etc., v. Holliday (1898) 150 Ind. 216, 49 N. E. 14, 42 L. R. A. 826;Mode v. Beasley, 143 Ind. 306, 42 N. E. 727;Ensley v. State (1909) 172 Ind. 198, 88 N. E. 62; Sutherland's Stat. Const. § 333. Words of general import in a statute are limited by words of restricted import immediately following, and relating to the same subject. 36 Cyc. 1119; Nance v. Southern R. Co., 149 N. C. 366, 63 S. E. 116.

[3] It is well settled that one statute may adopt another by a specific and descriptive reference thereto, and the effect is the same as if the adopted statute had been written into the adopting one, and when so adopted only so much of the adopted act is in force as is applicable to the adopting one. State ex rel. v. Board (1908) 170 Ind. 595, 85 N. E. 513;State ex rel. v. Leich (1906) 166 Ind. 680, 682, 78 N. E. 189, and authorities cited, 9 Am. & Eng. Ann. Cases, 302, and note.

[4] Under the above rules, in construing this act of 1889, we must consider it the same as if it had written into it sections 4045 to 4063, inclusive, Rev. St. 1881, for, while the act in question refers generally to the act of May 12, 1869, it specifically designates the act as set forth in the designated 19 sections, which sections did actually embrace all of the act of 1869, as amended, up to 1889. Considering the act in controversy as containing the adopted sections, we fail to find therein any provision for a petition, or the number of signers thereof, for aid by a county to construct a railroad, although specific provision was made in the act of 1869, before amendment, for the filing of a petition in such case, signed by 100 freeholders of the county; there is not found therein any provision for canvassing the vote of an entire county, though the original act of 1869 created a board of canvassers for that purpose; nor is there found any provision by which the board of commissioners can levy a special tax on the taxables of an entire county, though the original act of 1869 made express provision therefor.

[5] While it is the duty of the courts, in construing a legislative enactment, to so hold as to give full effect to each word found therein, if possible, we are here confronted with a statute which in general terms provides the “counties *** or *** townships *** are hereby authorized to take stock in,” etc., “*** by complying with the provisions, so far as the same are applicable, of *** sections 4045 to 4063, inclusive,” but specifically does not authorize the taking of stock, etc., except in the name, and for the use of, a single township.

[6] In Miles v. Ray (1885) 100 Ind. 166, 169, this court said: “The power to subject property to taxation in aid of railroad companies can be exercised only in strict...