State ex rel. Shanks v. Board of Commissioners of Carroll County
| Decision Date | 18 February 1904 |
| Docket Number | 20,095 |
| Citation | 70 N.E. 138,162 Ind. 183 |
| Parties | State, ex rel. Shanks et al., v. Board of Commissioners of Carroll County, etc |
| Court | Indiana Supreme Court |
From Carroll Circuit Court; T. F. Palmer, Judge.
Mandamus by State, on the relation of Leonidas P. Shanks and others against the Board of Commissioners of Carroll County. From a judgment for defendants, plaintiffs appeal.
Reversed.
Reeder & Sullivan, for appellants.
J. H Cartwright and J. P. Wason, for appellees.
This action was instituted by the relators, as citizens and taxpayers of Carroll county, Indiana, to mandate the board of commissioners of that county, ex officio a board of directors of all free gravel, macadam and turnpike roads, to assume the control and management of a certain toll road purchased by said board on the 7th day of May, 1901, from the Logansport & Burlington Turnpike Company. The board appeared to the action and successfully demurred to the petition for want of facts; and, on the relators refusing to plead further, the court rendered judgment against them for costs.
The only error assigned is upon the ruling of the court in sustaining the demurrer to the petition.
The material facts set up in the petition, in addition to those above stated, are substantially as follows: On the 8th day of January, 1901, a petition signed by one hundred and more freeholders of Carroll county, Indiana, was filed before the said board of commissioners, praying for the purchase of the Logansport & Burlington Gravel Road, which road at said time, and for many years prior thereto, was and had been owned and operated in said county as a toll road by said Logansport & Burlington Turnpike Company. The board, after considering said petition, appointed appraisers to appraise said toll road; and these appraisers on the 7th day of May, 1901, reported favorably in respect to the purchase of the road. On the same day the board of commissioners found that said report was in all things true, and thereupon entered an order for the purchase of the road; and on the same day the aforesaid turnpike company, by and through its proper officers, conveyed to said board of commissioners all of its right, title, interest, and franchise in and to said toll road, which conveyance was accepted by the board of commissioners, and thereupon the company surrendered and relinquished all management and control over the road, and have not since exercised any jurisdiction or management or control over the same.
It is further alleged that more than eighteen months have elapsed since the road was purchased and conveyed as aforesaid, but the board of commissioners has done nothing in respect to managing, maintaining, or repairing the road. It appears that, owing to the constant and great travel thereover, this road has become and is in bad condition and out of repair. Since the purchase and conveyance of the road to the county, the relators have frequently notified the board of its bad condition, and have often requested and demanded that the board of commissioners take charge of, manage, and repair said road, as provided by law for the maintenance and repair of other free gravel, macadam, and turnpike roads within said county, but said board has always refused to do so, and so continues to refuse. Copies of the petition, deed of conveyance, and other papers in the proceedings before the board in the matter of the purchase of the toll road in question were filed with the petition for mandate as exhibits. The prayer is that the court, by a writ of mandamus, compel said board of commissioners, as ex officio a board of directors of all free gravel, macadam, and turnpike roads in said county, to take charge of and assume the management and control of said road, and assign the same to one of its members, as provided by law for the maintenance and repair thereof, etc.
The material question at issue between the parties is as to whether, under the facts, the road in dispute, after its purchase and conveyance to the county, was one which said board, under the law, was required to assume the management and control thereof.
The contention of counsel for appellant is that after its purchase and conveyance it became the duty of the board of commissioners, under the law, as ex officio directors of all free gravel, macadam, and turnpike roads of the county, to manage and control said road, and provide for the repair thereof, as required by an act of the legislature approved and in force March 11, 1901 . It is asserted that upon the refusal of the board of commissioners to discharge this duty enjoined upon it by law, the performance thereof can be compelled by mandamus.
Counsel for appellee, however, insist that by the provisions of an act of the legislature, approved March 9, 1895 , under the authority of which it is conceded that the road in controversy was purchased, the legislature did not intend that it should pass under the control and jurisdiction of the commissioners, but should be maintained and be repaired under the authority of the statutes pertaining to ordinary highways. It is therefore asserted, in opposition to the contention of appellants' counsel, that the act of the legislature approved March 11, 1901, can have no application to the control and repair of the road in controversy.
The opposite views entertained by the counsel of the respective parties in regard to the proper interpretation of the provisions of the act of 1895 require an examination of the statutes--repealed and unrepealed--of this State enacted in relation to the construction and maintenance of free gravel, macadam, and turnpike roads, and also the laws pertaining to the purchase by boards of commissioners of toll roads for the purpose of converting them into highways to be open to the travel of the public thereover without the payment of toll. Reviewing these laws from the year 1877, it will be found that, by an act approved March 3d of that year, the construction by boards of commissioners of gravel, macadam, or paved roads to be opened to the public free of toll was authorized. Acts 1877, p. 82. This law made no provision, however, for the repair of these roads. Consequently the necessity for some legislation in regard to their management and repair after their construction was recognized; and the legislature, by an act approved March 24, 1879 (Acts 1879, p. 226), provided that the board of commissioners of any county, by virtue of their office, should constitute a board of turnpike directors, under whose control and management all free gravel roads of the county were exclusively vested; and provisions were made therein for the maintenance and repair of these roads under the authority of the board of commissioners as such turnpike directors. This act of 1879, as originally passed, was apparently limited and made to apply only to free roads constructed by boards of commissioners, for section three expressly provided that "wherever the word turnpike occurs in this act it shall be taken and held to include all roads constructed or improved under the act entitled 'An act to authorize the county commissioners to construct roads, on petition of a majority of resident landowners along and adjacent to the line of said road,' approved March 3, 1877."
In 1881 (Acts 1881, p. 531), a law was passed authorizing the board of commissioners of any county, when petitioned by a certain number of freeholders and citizens thereof, to submit to the voters of the county, at an election as therein provided, the question of the purchase of any turnpike or toll road. If the majority of those voting at such election were in favor of purchasing the road in question, the board of commissioners were empowered to make the purchases, and thereupon the road was to be conveyed by a proper deed by the owners thereof to such board, and when so conveyed it became a free road. By section five it was provided that such toll roads, after becoming free turnpike roads, should be kept in repair the same as other free turnpike roads, under the act approved March 24, 1879. Vide § 6939c Burns 1901.
In 1883 (Acts 1883, p. 121) sections one and three of the act of March 24,...
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