The Board of Commissioners of County of Owen v. Spangler

• Decision Date: 18 December 1902
• Docket Number: 19,783
• Citation: 65 N.E. 743,159 Ind. 575
• Parties: The Board of Commissioners of the County of Owen et al. v. Spangler et al
• Court: Indiana Supreme Court

65 N.E. 743

159 Ind. 575

The Board of Commissioners of the County of Owen et al.

v.

Spangler et al

No. 19,783

Supreme Court of Indiana

December 18, 1902

From Owen Circuit Court; J. R. Miller, Special Judge.

Suit by John Spangler and others to enjoin the board of commissioners of Owen county from issuing gravelroad bonds, and levying and collecting a tax for the payment thereof. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Willis Hickam, D. E. Beem and J. C. Robinson, for appellant.

I. H Fowler, T. G. Spangler and G. W. Grubbs, for appellees.

OPINION

Gillett, J.

Appellees who were the plaintiffs below, commenced this action on October 14, 1901, to enjoin the issuing of the series of bonds hereinafter referred to, and to enjoin the levying and collection of a tax for the payment of said bonds. A demurrer was filed to the complaint. The demurrer was overruled, and appellants excepted, and, electing to abide their demurrer, they refused to plead further. From a decree granting appellees the relief sought, appellants appeal to this court. An assignment of error presents the question as to the sufficiency of the complaint.

The complaint discloses that on January 25, 1899, a proceeding was instituted before the board of commissioners of said county, under Acts 1893, p. 196, as amended by Acts 1895, p. 143, for the improvement of certain highways in Marion township, Owen county, "by laying out, changing, locating, grading, macadamizing or graveling the same." The proceedings that followed were regular, down to the letting of the contract. The contract was let on May 27, 1899, at a sum in excess of four per centum of the total assessed taxable valuation of all of the property of said township, and the bonds above referred to, which equaled in amount such contract price, were ordered issued and sold to pay the cost of said improvement. The further allegations of the complaint need not be stated, as but two questions are argued, and they are as to the authority to negotiate said bonds, and as to whether there was a remedy by appeal that appellees ought to have pursued.

On February 7, 1899, an act entitled "An act to limit the issue of bonds or other evidence of indebtedness for the construction of free gravel or macadamized roads and declaring an emergency" (Acts 1899, p. 26), became a law. Section one of that act, omitting the enacting clause, is as follows: "That it shall be unlawful for any board of county commissioners to issue bonds or any other evidence of indebtedness payable by taxation, for the construction of free gravel, or macadamized roads, when the total issue for that purpose, including bonds already issued and to be issued, is in excess of four per centum of the total assessed taxable valuation of the property of the township or townships wherein such roads are located or to be located, and all bonds or obligations issued in violation of this act shall be void." March 4, 1899, the General Assembly passed a further act, with an emergency clause, by which it was provided that said last mentioned act "shall not in any manner apply to or affect the construction of free gravel or macadamized roads and the issue and sale of bonds therefor in cases where petitions have been filed or surveys and estimates have been ordered for the construction of free gravel or macadamized roads prior to February 27, 1899, and where the bonds for the construction of any such roads have not been issued or sold, prior to the 27th day of February, 1899, in counties where by the United States census of 1890 the population is shown to be between 15,000 and 15,050." Acts 1899, p. 422. In 1901 the General Assembly passed a curative act, solely applicable to the proceedings here in question, by which all of said proceedings and said bonds were declared validated. Acts 1901, p. 283.

We will first consider the question as to the effect of the order for the issue of bonds, apart from any question as to the validity of the two acts last above mentioned. Appellants' counsel contend that as the board of commissioners was constituted a special tribunal to act upon petitions to improve township highways, said board acted in a quasi judicial capacity, and that therefore its authority in the premises, as against this collateral attack, was as abundant to decide wrong as to decide right. The claim that this doctrine is applicable to the case before us can not receive our assent. As shown, the statute makes it unlawful for boards of commissioners to issue bonds for such purposes when the total issue of such bonds, including bonds already issued, exceeds four per centum of the assessed taxable valuation of the property of the township, and the statute then provides that "all bonds or obligations issued in violation of this act shall be void." The township is a governmental subdivision of the State, and subject to the control of the General Assembly, and the board of commissioners is constituted as a special agency to provide for the making of such improvements, and to raise the money to pay for the same. When, therefore, it is provided by law that it shall be unlawful to issue bonds or other evidences of indebtedness under certain circumstances, and that bonds and obligations issued in violation of such law shall be void, we must regard the case as one where an authorized principal has not only limited the authority of the agent, but, further, as a case where such principal, being a lawmaking power, has by its fiat definitely fixed the consequences which shall attend upon a violation of its command. The sole question, therefore, is, what is the will of such principal, as expressed in the statute? The act of February 7, 1899, stands as a declaration that it is against public policy to permit the incurring of an indebtedness in such cases greater than the statute authorizes, and the attached provision as to the effect of a violation of the legislative prohibition should be construed liberally to advance the remedy. The rules of construction will not authorize us to add to the unequivocal provision that bonds or other evidences of indebtedness issued in violation of the act shall be void the words "except on collateral attack." In view of the statute, it must be said that there was an implied withdrawal of power from the tribunal to enter the order under such circumstances. The case bears an analogy to cases where courts of general jurisdiction are denied the authority to enter a particular judgment. We recognize the extent that this court has gone in upholding the proceedings of special tribunals against collateral attacks, but we feel that a ruling on our part maintaining the validity of bonds or obligations that the statute has declared to be void, because of the effect of an exercise of jurisdiction, would be not only a step in advance of our former rulings, but a step that, if taken, would lead to the disregard and nullification not only of statutory but even of constitutional inhibitions against the incurring of indebtedness by public corporations in excess of prescribed limits. Such a prohibition means no less than its language imports, and we must therefore hold that unless the statute of February 7, 1899, was modified in its operation by subsequent acts, there was no power in the board of commissioners to issue the bonds in question.

We proceed to consider whether the act of March 4, 1899, had the effect to authorize the subsequent action of the board of commissioners in ordering said bonds issued. This court takes judicial notice of the population of the counties of this State according to the federal...