State ex rel. Moore v. Board of Commissioners of Clinton County

• Decision Date: 15 October 1903
• Docket Number: 19,797
• Citation: 68 N.E. 295,162 Ind. 580
• Parties: State, ex rel. Moore, v. Board of Commissioners of Clinton County
• Court: Indiana Supreme Court

68 N.E. 295

162 Ind. 580

State, ex rel. Moore, v. Board of Commissioners of Clinton County

No. 19,797

Supreme Court of Indiana

October 15, 1903

Mandate Modified and Rehearing Denied March 15, 1904.

Rehearing Again Denied May 11, 1904, Reported at: 162 Ind 580 at 598 and 606.

From Montgomery Circuit Court; Jere West, Judge.

Mandamus by the State of Indiana, on the relation of William R. Moore against the Board of Commissioners of Clinton County. From a judgment for defendant, relator appeals.

Reversed.

W. R. Moore, A. W. Hatch, F. Winter and C. Winter, for appellant.

M. A. Morrison, F. E. Gavin, T. P. Davis and J. L. Gavin, for appellee.

Gillett, J. Monks, C. J., concurs in the result.

OPINION

Gillett, J.

Action by way of mandate to compel the board of commissioners of Clinton county to order the placing upon the duplicate of a tax that had theretofore been levied in aid of a railroad company, but which had been suspended until the completion of the railroad. March 5, 1878, a petition was filed before the board of commissioners of said county for the submission to the voters of Center township therein of a proposition to aid the Frankfort & State Line Railroad Company. Such proceedings were afterwards had that pursuant to an election a tax was levied by such board. April 29, 1886, one David P. Barner, a freeholder, and more than twenty-five other freeholders of said township, filed with said board a petition asking that the aid so voted be canceled, for the reason "that said railroad company had not within five years expended in the construction of said road in said township an amount equal to the aid so voted." Due notice of said petition was given, and on June 16, 1886, one Samuel O. Bayless, a resident taxpayer of said township, appeared, and filed a cross-petition in said proceeding, alleging, in substance, the voting of said aid; that said railroad company, within the time required, had done an amount of work in the construction of said railroad in said township equal to the amount of the aid so voted, and had fully completed its entire line in said township and county. His petition concluded with a prayer that said board order said tax collected as if the collection thereof had never been suspended. Both said Bayless and said railroad company filed an answer to the petition of Barner and his associates, and they joined issue with said Bayless upon his cross-petition. A trial before the board resulted in a judgment canceling said tax and aid, and from said judgment Bayless and the railroad company appealed. Pending the appeal the Western Construction Company was made a party on its own application, and filed an intervening petition. The case was ultimately sent on change of venue to the White Circuit Court, and said court, after a trial, rendered judgment that the petitioners, Barner et al., were not entitled to any relief; that said railroad company, by expending a sum of money in excess of $ 20,000, had, "according to law, earned said sum of $ 20,000 local aid voted by the taxpayers of said Center township in favor of said railroad company;" that said construction company had acquired the right to said appropriation by assignment; and directing that the board of commissioners of said county of Clinton enter upon its records an order requiring that said tax be immediately collected by the treasurer of said county, as though the same had never been suspended. Further orders were made in said judgment upon the auditor and treasurer of said county as to the steps they were respectively required to take to collect and pay over said aid.

From said judgment said petitioners prosecuted an appeal to this court, where said judgment was affirmed. Barner v. Bayless, 134 Ind. 600, 33 N.E. 907. In the course of the opinion in that case it was said: "Many of the questions discussed by counsel, in their briefs, when applied to this case, are of no importance whatever. The board of commissioners of Clinton county was not a party to the cross-complaint of Bayless, nor was the county auditor or county treasurer such party. They were not parties to this suit in any sense. It is plain, therefore, that any order the court may have made in this case, in relation to the collection of the tax in controversy, was a mere nullity, for the reason that no party was before the court upon whom such an order could operate. Such order could not affect the appellants, because they had no power to execute it; nor were any orders made by the court affecting them, beyond fixing their liability for the tax which they were seeking to avoid. Nor does the order of the court directing that the tax, when collected, be paid over to the appellee, the Western Construction Company, in any manner affect the appellants. If they are compelled to pay the tax in controversy, it is immaterial to them whether it is paid over to the railroad company or to the construction company which performed the labor of constructing the railroad. Stripped of these immaterial matters, we reach the controlling question in the case, and that is the question as to whether the railroad company had expended, in Center township, in the actual construction of its road, a sum equal to the donation voted by the township. This was the question for trial before the circuit court. As a question of fact, it was hotly contested, and the evidence relating to it was conflicting. The court hearing the evidence reached the conclusion that the company had expended, in the actual construction of its road in Center township, a sum largely in excess of the amount of the donation in controversy. With this conclusion, we have neither the power nor the inclination to interfere."

After said cause was disposed of on appeal to this court, said Bayless and the Western Construction Company instituted contempt proceedings against the members of said board and the auditor and the treasurer of said county in the White Circuit Court, charging that said officers had failed to carry out the provisions of said judgment after a certified copy of the same had been served upon them. Upon a hearing said officers were committed by said court, and they appealed to this court, and here secured a reversal of said judgment. McKinney v. Frankfort, etc., R. Co., 140 Ind. 95, 38 N.E. 170; Davis v. Bayless, 140 Ind. 700, 38 N.E. 400. The ground of reversal, as expressed in the McKinney case, seems to have been that the officers were not subject to proceedings for contempt in failing to obey the directions of a judgment to which they were not parties; but it was stated by this court, in ruling on the petition for a rehearing in said cause, that "if the appellant refused to discharge a duty enjoined upon him by law, a proper remedy was provided to compel him, upon his failure, to show sufficient cause for his refusal."

Subsequent to the disposition of said causes, the relator herein commenced a proceeding by way of mandate against the auditor and treasurer of said county to compel them to proceed to collect the tax. A demurrer was addressed by the defendants in said action to the application and alternative writ. The demurrer was sustained, and final judgment rendered against said relator. The latter appealed to this court, but the judgment was affirmed. State, ex rel., v Burgett, 151 Ind. 94, 51 N.E. 139. In the latter case a somewhat different view seems to have been taken from that expressed in Barner v. Bayless, 134 Ind. 600, 33 N.E. 907, as to the effect of the judgment against the board of commissioners, but the rulings or statements of this court in the Barner case were not pleaded in the Burgett case, and this court held that it could not take judicial notice of said decision. As neither the taxpayers nor the appellee herein were parties to the Burgett case, the rulings of this court in the opinion therein rendered have not become the law of the case, but, as they accord with our present view, we quote the following from the opinion therein rendered: "Under the provisions of § 7865 Burns 1894, § 5778 Horner 1897, the White Circuit Court was authorized to make a final determination of the proceedings appealed from, and cause the same to be executed; or it had the power to send the same down to the board with orders how to proceed, and require such board to comply with the final determination made by the court in the premises. The White Circuit Court found that the railroad company had within the proper time expended in the construction of its road in said township, more than the amount of the aid voted, and had fully complied with all the requirements of the statute; and said court was fully authorized to render final judgment ordering 'that said tax be collected at once, the same as though the same had never been suspended.' It is not alleged, however, in the application or alternative writs, that the White Circuit Court rendered such judgment; but, on the contrary, it is alleged that said court rendered judgment that 'the board of commissioners of said county of Clinton, in the State of Indiana, shall enter upon its record an order requiring that said tax be immediately collected by the treasurer of said county as though the same had never been suspended.' It, in effect, as it was fully empowered to do, sent the same down to the board of commissioners of said county, with orders that such board enter such final order and judgment. This order was binding on the board of commissioners of Clinton county, as a judicial body; and they were required to make and enter such order and judgment as directed, the same as a circuit court is required to perform and execute the orders and mandates of this court made in a case appealed from such court. It is not necessary, in order to bind an inferior court in a case...