Swartz v. Bd. of Com'rs of Lake Cnty.

• Decision Date: 27 February 1902
• Citation: 63 N.E. 31,158 Ind. 141
• Parties: SWARTZ v. BOARD OF COM'RS OF LAKE COUNTY.
• Court: Indiana Supreme Court

158 Ind. 141

63 N.E. 31

SWARTZ

v.BOARD OF COM'RS OF LAKE COUNTY.

Supreme Court of Indiana.

Feb. 27, 1902.

Appeal from circuit court, Lake county; E. P. Hammond, Special Judge.

Bill by Henry P. Swartz against the board of commissioners of Lake county, to enjoin defendants from proceeding with arrangements for the construction of a court house from the county funds. From a judgment for defendants, plaintiff appeals. Affirmed.

Johannes Kopelke and John B. Peterson, for appellant. Wm. Johnston, for appellees.

JORDAN, C. J.

By an act of the legislature of this state, passed in 1895, entitled, “An act to establish a superior court for the counties of Lake, Porter and La Porte, defining its authority and jurisdiction providing for the appointment, election, commission and compensation of the judge thereof and for clerk and sheriff compensation of same, and places and times of holding said court, and declaring an emergency,” a superior court was created for the counties of Lake, Porter, and La Porte. Acts 1895, p. 210. Section 5 of this statute provided that the clerk of the circuit court and the sheriff of the county of each respective county in which the court was held should attend the sittings thereof and discharge all of the duties pertaining to their respective offices, as they were required to do by law in the circuit court, and that they should be controlled in all things by the law pertaining to their government in the circuit court. When tested by the criterion provided under the terms of section 6 of the act, it is evident that the legislature has fixed the city of Hammond, in Lake county, and the city of Michigan City, in La Porte county, as the place in each of these respective counties, instead of the county seat thereof, for holding the sessions of said court. By section 9, the court, created by the act in question, is invested with original and appellate jurisdiction concurrent with the circuit court in all civil actions, and in all criminal actions of the grade of misdemeanors, except in actions in which the title to real estate is involved and in probate matters. Section 19 of the act reads as follows: “The common council of the city or board of trustees of the town in the county of Lake where such court is held shall provide a convenient and suitable place for the holding of said superior court, and in the town or city herein provided. The common council of the city or the board of trustees of the town in the county of La Porte where such court is held shall provide a convenient and suitable place for holding said superior court and in the town or city herein provided.” This statute in respect to its principal provisions was held to be a valid exercise of legislative power in the appeal of Woods v. McCay, 144 Ind. 316, 43 N. E. 269, 33 L. R. A. 97. By an amendatory act approvedMarch 8, 1897 (Acts 1897, p. 236), sections 5 and 9 were amended,-section 5 to the extent of the following provision: “And the clerk and sheriff, as and for compensation for the services provided for in this act, shall receive six hundred dollars each per annum in addition to the salaries otherwise provided for said officers, which sum shall be payable out of the fees collected by them.” Section 9 was amended to read as follows: “The said court shall have concurrent jurisdiction with the circuit court of the respective counties in all cases of law and equity whatsoever, and in criminal cases, and actions for divorce, and in all other causes, matters and proceedings of which such circuit court now or may hereafter have jurisdiction except probate matters and cases involving the title to real estate.” By a subsequent statute enacted on March 7, 1899 (Acts 1899, p. 564), sections 7, 15, 16, and 19 of the original act of 1895 were amended, and sections 5 and 9 as amended by the act of 1897 were again amended. By this amendatory act of 1899, section 19 of the original statute was amended to read as follows: “The board of county commissioners of each of the respective counties mentioned in this act shall provide a suitable and convenient place for the holding of the said superior court, in their respective counties, and in the town or city herein provided; and they shall also respectively provide all such suitable and necessary places, and in such town or city, as are required by the officers of the said courts for the proper performance of their duties as such and for the preservation of the records of said courts.” Acts 1899, p. 566. The amendment made to section 5 by the act of 1897 was to add the following provision: “And the prosecuting attorney of the judicial circuit in which each respective county is situate shall prosecute the pleas of the state in said superior court for their respective county or counties.” Id. p. 567. Section 9 was by the same act amended so as to provide as follows: “The said court shall have original appellate and concurrent jurisdiction with the circuit court of its respective county in all cases and actions at law and in equity whatsoever; and in criminal cases and actions for divorce and in all matters of probate and the settlement of decedents' estates; and in all other causes, matters and proceedings of which such circuit court now has or may hereafter have jurisdiction.” Id. p. 567. Adhering, as we do, to the decision in Woods v. McCay, 144 Ind. 316, 43 N. E. 269, 33 L. R. A. 97, whereby, as previously stated, the validity of the original act of 1895 was upheld, so far at least as it pertained to the establishment of the court in controversy, and in fixing its jurisdiction as well as the several places in each of the respective counties where its sessions were to be held, it follows that this superior court is a legally created tribunal, whose jurisdiction, under section 9 as amended by the act of 1899, is equal to that of the circuit courts of this state. Having reached this conclusion, we have proceeded to examine and determine the several questions presented in this appeal. It appears that by virtue of section 19 of the original act, as amended by the act of 1899, the board of commissioners of Lake county is proposing to construct a house or building at the city of Hammond, at the expense of the county, for the purpose of affording a suitable and convenient court house in which the sessions of said superior court in Lake county may be held; and also to afford suitable and necessary office rooms in which the sheriff and clerk of the court may discharge their respective duties, and for the preservation of the court's records. To prevent the appellee herein, the board of commissioners, from carrying out the proposed construction and maintaining of such a house or building at the expense of the county for the purposes mentioned, appellant, a resident property owner of Crown Point, the county seat of Lake county, and a taxpayer of said county, commenced this action on September 18, 1899, to obtain an injunction against appellee. The complaint is in two paragraphs, the following being substantially the facts alleged in the first paragraph: Appellant, plaintiff below, is the owner of a certain lot in the town of Crown Point, which is situate opposite to the court house and public square therein, and which real estate is a part of the lot, which in the year 1840 was owned by one Solon Robinson. The latter, along with others, donated to Lake county the site for the public buildings of the county at the county seat, and other property to aid in the construction thereof, and that by reason of such donations the county seat of Lake county was located at Crown Point, and has ever since been maintained at that town. Robinson and others also platted the town of Crown Point, marking on the plat the donations made, and the lots reserved for themselves. A copy of the deed of donation, together with the town plat, is set out in the complaint. It is alleged that these things were done by virtue of a statute of 1824, the provisions of which in part are also set out. Persons thereafter, it appears, bought lots at Crown Point in confidence of the location of the county seat as aforesaid, and paid larger sums therefor than they would otherwise have done; that this was also the case with the plaintiff, and his predecessors in title; that on his lot in question he conducts a drug store from which he derives additional value by reason of its location at the county sent at a point opposite the court house. The complaint then proceeded to charge that the board of commissioners has contracted for certain real estate at the city of Hammond, which city is more than 16 miles distant from Crown Point, upon which realty it proposes to erect a court house for the use of the superior court. It is averred that the price to be paid for said tract of land is $5,000, and that the expense which will be incurred in the construction of the court house will be over $50,000, and that the defendant, the board of commissioners, proposes to issue $50,000 of bonds of said county for the purpose of raising a building fund, and will purchase said real estate and construct the said building and pay for the same out of the funds of the county unless enjoined; that the said board of commissioners is assuming to act under an act of the general assembly of 1899, which it is charged confers no such power, nor is said board invested by any act of the legislature with such authority; and if said statute should be read or construed so as to confer such power on the board it is necessarily void under the state constitution; and it is further charged that if the act in question or any other act should be so read or construed they would be void under that clause of the federal constitution which forbids the enactment of statutes which impair the obligation of contracts; that the acts done by the officials in 1840 in connection with the location of the county seat at Crown Point effected and created a contract for its permanent and...