State ex rel. Miller v. Bd. of Comr's of Pike Co.

• Court: Indiana Supreme Court
• Writing for the Court: Howk
• Citation: State ex rel. Miller v. Bd. of Comr's of Pike Co., 104 Ind. 123, 3 N.E. 807 (Ind. 1885)
• Decision Date: 08 December 1885
• Parties: State ex rel. Miller v. Board of Comr's of Pike Co. and others.

104 Ind. 123

3 N.E. 807

State ex rel.Miller

v.Board of Comr's of Pike Co. and others.

Supreme Court of Indiana.

Filed December 8, 1885.

Appeal from Daviess circuit court.

L. D. Thomas, Miller & Richardson, and John G. Williams, for appellant.

Powsey & Wilson and Ely & Townsend, for appellee.

Howk, J.

This was a suit by the appellant's relator, Miller, against the appellees, the board of commissioners of Pike county and William J. Bethel, auditor of such county. The object of the suit, as stated in the prayer of relator's complaint, was to compel, by mandate, the board of commissioners of Pike county to make an additional levy upon the taxable property of Washington township, in such county, in favor of the Indianapolis & Evansville Railway, equal to 1 per centum upon the taxable value of the property of such township, as shown by the tax duplicate of the township delivered to the treasurer of Pike county for the year 1878, and to correct the entry made in the order-book of such board at its June session in 1879, by inserting the name “Evansville, Washington & Worthington Railway Company” in lieu of the name “Evansville, Worthington & Washington Railway Company,” then appearing in such order, and to order the whole of such tax to be collected, or show cause why it should not; and to compel, by mandate, the appellee Bethel, as auditor of such county, to place upon the tax duplicate of Washington township the levy made by such board of commissioners at its June term, 1879, and the levy therein prayed to be made by such board, or show cause why he should not do so. This suit was commenced in the Pike circuit court, but the venue thereof was subsequently changed to the court below. There the issues joined in the cause were tried by the court, and a finding was made for the appellees, the defendants below; and, over the relator's motion for a new trial, judgment was rendered against him for appellee's costs.

In this court the only error assigned by appellant's relator is the overruling of his motion for a new trial. The only question presented and discussed by the relator's counsel in their able and exhaustive brief of this cause may be thus stated: Did the trial court err in refusing to permit the relator to prove, by parol evidence, that the auditor's call for a special session of the board of commissioners of Pike county was duly served upon each member of such board? Or (2) upon the evidence admitted and appearing in the record, did the trial court err in finding for the appellees, the defendants below?

We will first consider and decide the second of these two questions. There is no conflict in the evidence appearing in the record. It was all introduced by appellant's relator. No evidence whatever was introduced by the appellees, or either of them. The first question for decision, therefore, is whether or not the court below did not err in overruling the relator's motion for a new trial, because the finding of the court was not only not sustained by, but was contrary to, the evidence admitted and actually in the record. It was shown by the evidence of Frank Bilderback that in January, 1879, he was the auditor of Pike county, and that, as such auditor, he issued a written call notifying the board of commissioners of Pike county to meet in special session. A paper writing having been shown the witness Bilderback, he identified the same as the written call so issued by him. The written call, and the indorsement thereon, were then read in evidence, in substance as follows:

“State of Indiana, Pike County, ss.,- To the Sheriff of said County, Greeting: Whereas, in my opinion, the interest of Pike county demands that the board of commissioners of said county should meet in special session, you are therefore commanded to summon John J. Robling, Joseph Ferguson, and George Fettinger, who now constitute said board, to appear and attend a special session of the board of commissioners of said county, to be holden at the auditor's office in Petersburgh, Indiana, on the fifteenth day of January, 1879, to meet at the hour of one o'clock p. m. of said day, and then and there return this writ.

In witness whereof, I hereunto set my hand and affix my official seal this thirteenth day of January, 1879.

[Signed] Frank Bilderback, A. P. C.” [Seal.]

Indorsed:

“Served, as commanded, by reading the within summons to, and within the hearing of, John J. Robling, Joseph Ferguson, and George Fettinger. Mileage, $6.20; service, $1.20; return, .10; total, $7.50.”

This indorsement is without date or signature.

Appellant's relator offered and read in evidence a transcript, duly certified, of the proceedings of the board of commissioners of Pike county on the fifteenth day of January, 1879, the day named in the foregoing call of the auditor of such county. It was shown by this transcript “that, at a special term of the commissioners' court, begun and held at the auditor's office, in the town of Petersburgh, in Pike county and state of Indiana, on the fifteenth day of January, 1879, where were present the Hons. John J. Robling, Joseph Ferguson, and George Fettinger, commissioners of said county, and Frank Bilderback, auditor, the following proceedings were had, to-wit:” And here follow the proceedings of the county board, showing the presentation of a proper petition, signed by more than 25 freeholders of Washington township, in Pike county, praying that an appropriation of $18,570, being 2 per cent. upon the aggregatevaluation of the taxable property of such township, as shown by the tax duplicate o Pike county for the year 1878, should be donated by Washington township to the Evansville, Washington & Worthington Railway Company to aid in the construction of its railway through such township, and that the question of making such donation might be submitted to the legal voters of Washington township at an election to be held for that purpose; and that the county board then and there caused such petition to be...