State ex rel. Western Construction Company v. Board of Commissioners of County of Clinton

• Decision Date: 21 February 1906
• Docket Number: 20,589
• Citation: 76 N.E. 986,166 Ind. 162
• Parties: State, ex rel. Western Construction Company, v. Board of Commissioners of the County of Clinton
• Court: Indiana Supreme Court

76 N.E. 986

166 Ind. 162

State, ex rel. Western Construction Company, v. Board of Commissioners of the County of Clinton

No. 20,589

Supreme Court of Indiana

February 21, 1906

From Clinton Circuit Court; Joseph M. Rabb, Special Judge.

Action by the State of Indiana, on the relation of the Western Construction Company, against the Board of Commissioners of the County of Clinton. From a judgment for defendant plaintiff appeals.

Affirmed.

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

Martin A. Morrison and Gavin & Davis, for appellee.

OPINION

Gillett, C. J.

This is an action by way of mandate, instituted by the Western Construction Company as relator, to compel the Board of Commissioners of the County of Clinton to enter an order requiring the treasurer of said county to collect a certain railway aid tax, which had been levied against Center township, in said county, in the year 1878, and which had been afterwards suspended, pursuant to the provisions of § 5369 Burns 1901, § 4069 R. S. 1881. In one form or another, the subject-matter of this controversy, or some phase of it, has been before this court four times prior to the taking of the present appeal. See Barner v. Bayless (1893), 134 Ind. 600, 33 N.E. 907; McKinney v. Frankfort, etc., R. Co. (1895), 140 Ind. 95, 38 N.E. 170; State, ex rel., v. Burgett (1898), 151 Ind. 94, 51 N.E. 139; State, ex rel., v. Board, etc. (1904), 162 Ind. 580, 68 N.E. 295. In the present case the court sustained a demurrer to the petition and alternative writ, and from the final judgment which followed, relator appeals. In its averments of facts the writ follows the petition, so we need only consider the averments of the petition, and we shall only attempt to state what seems to be the material averments of that pleading.

It appears that a petition in the ordinary form was filed with said board, asking that said township make an appropriation of $ 20,000 to aid the Frankfort & State Line Railroad Company. The board ordered an election, and the notice thereof stated that it was to be held to take the votes of the legal voters of said township upon the proposition to aid in the construction of said railroad "by donating money to said company to the amount of $ 20,000, as provided by an act to amend the first, second, third, fourth, thirteenth and seventeenth sections of an act" approved May 12, 1869, and acts amendatory thereto. The election resulted in favor of the proposition, and, after taking the proper intermediate steps, the board, at its June session, 1878, levied a special tax of ninety-four one-hundredths of one per cent on the real and personal property of said township. The tax was placed on the duplicate, but the auditor and treasurer suspended the collection thereof, as provided by § 5369, supra. It further appears that in June, 1886, David P. Barner and more than twenty-five other taxpayers of said township filed a petition with the board of commissioners to cancel said tax, as provided by said section. Publication was duly had, and, pursuant thereto, one Bayless appeared before the board and filed a petition setting up facts to the effect that said railroad company had performed the statutory conditions, and charging therein that it was the duty of the board to order said tax collected. Both Bayless and the railroad company filed an answer, by way of denial to the petition, and the petitioners filed an answer in denial to the petition of Bayless. Upon a trial the board of commissioners ordered the tax canceled. Bayless and the railroad company appealed, and the proceeding ultimately reached the White Circuit Court. While the proceeding was pending on appeal, the relator herein filed in said cause its intervening petition, alleging, among other things, "that it had become and was the owner by assignment to it by said Frankfort & State Line Railroad Company of all the latter's right, title and interest in and to said aid and tax," and demanded, as between said Frankfort & State Line Railroad Company and said Western Construction Company, that said Western Construction Company be adjudged the owner of said tax, aid and donation, and entitled to the money derived therefrom." It is further alleged in the relator's petition that said cause was tried on its merits upon said pleadings in the White Circuit Court; that it then and there became a material question as between the parties whether the railroad company had within the time allowed by law expended in the actual construction of its road in said township an amount of money equal to the appropriation, and also whether prior to said time said railroad had transferred its right, title and interest in and to said appropriation to the Western Construction Company. It is alleged that said court rendered final judgment in said cause, whereby it adjudged that said railroad company, by expending in the construction of its line of railroad in said township a sum of money in excess of $ 20,000, had earned said sum of $ 20,000 local aid voted by the taxpayers of said township; that the intervening petitioner, the Western Construction Company, acquired by assignment the right and interest of said railroad company in said aid; that the board of commissioners entered an order upon its records requiring that said tax be immediately collected by the treasurer of said county, as though the same had never been suspended; that the order of said board suspending the tax was void; that the auditor of said county place upon his duplicate said voted aid "of $ 20,000, together with the proper penalty thereon, and interest thereon, from June 31, 1881, until collected;" that the treasurer at once proceed, as in the case of delinquent taxes, to collect said aid to $ 20,000, together with said penalty and interest from June 31, 1881, and that the treasurer, when the same is collected, shall immediately pay the same to the clerk of the White Circuit Court for the use and benefit of the Western Construction Company, its assignees or successors. It is further alleged in the petition herein that the petitioners, Barner and others, appealed to this court, and that on issues duly joined said judgment of the White Circuit Court was affirmed. Then follows the opinion of this court, as the same appears in Barner v. Bayless, supra. For the sake of clearness, we deem it proper to quote the following portion of said opinion: "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 the County of Clinton 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. It is claimed, however, by the appellants, that during the progress of the cause the court below committed many errors which prevented them from having a fair trial. It is claimed, first, that the court erred in permitting the Western Construction Company to intervene and become a party to the suit. It would seem to be a sufficient answer to this claim to say that the Western Construction Company was permitted to become an intervenor in this case without objection or exception. Had such objection been made, as it was the owner of the subject-matter of this suit, we see no impropriety in permitting it to appear and take such steps as would protect its interests. Such seems to be the recognized practice." The relator in this case also pleads the proceedings and judgment in certain contempt proceedings which had their origin in the refusal of the members of the board and auditor and treasurer to obey the requirements of said judgment. Said officers were adjudged guilty of contempt, and upon appealing to this court the judgment was reversed. Finally, it is alleged in said petition that in September, 1904, relator filed a certified copy of said proceedings in the case of Barner v. Bayless, supra, with the board of commissioners, and demanded performance, which was refused.

Relator grounds its demand for a reversal upon the claim that it is entitled to the appropriation under the statutes, upon the judgment of the White Circuit Court in the cause last mentioned, and upon the...