The Board of Commissioners of Hamilton County v. State ex rel. Cottingham

• Decision Date: 30 January 1886
• Docket Number: 12,624
• Citation: 4 N.E. 589,115 Ind. 64
• Parties: The Board of Commissioners of Hamilton County et al. v. The State, ex rel. Cottingham et al
• Court: Indiana Supreme Court

4 N.E. 589

115 Ind. 64

The Board of Commissioners of Hamilton County et al. v. The State, ex rel. Cottingham et al

No. 12,624

Supreme Court of Indiana

January 30, 1886

Reported at: 115 Ind. 64 at 70.

From the Hamilton Circuit Court.

The judgment is reversed, at the costs of appellees, and the cause remanded, with instructions to overrule the demurrer to appellant's return to the alternative writ.

A. F Shirts, G. Shirts, W. R. Fertig, W. S. Christian, I. W Christian, J. Stafford, T. E. Boyd, T. E. Ballard, E. E Ballard, P. S. Kennedy, S. C. Kennedy, J. H. Burford and W. T. Whittington, for appellants.

H. Crawford, T. J. Kane and T. P. Davis, for appellees.

OPINION

Zollars, J.

The Midland Railway Company, an appellee in this action, claims to be the successor of the Anderson, Lebanon and St. Louis Railroad Company, and as such entitled to an appropriation voted in aid of the latter company by Noblesville township, in Hamilton county. The whole of the amount so voted has not been placed upon the tax duplicate for collection. Appellee Cottingham, and the Midland Railway Company, as relators, filed a complaint in the court below against the board of commissioners of Hamilton county, and James W. Crooks, as the auditor of that county, in which they asked that, by a writ of mandate, Crooks should be compelled to place the amount upon the tax duplicate for collection, and that the county board should be compelled to make an order for its collection. An alternative writ of mandate was issued and served, and to that writ appellants made return. A demurrer was sustained to the return, and a peremptory writ ordered.

Passing over the question as to whether or not, in a case like this, the railway company may be a relator, and other questions which do not go to the merits of the real controversy, we direct our attention to the return by appellants, as that does present the controlling question in issue.

The following summary embodies such portion of the facts averred in the return as needs to be here set out: In 1871, a proper petition was presented to the board of commissioners of Hamilton county, asking that Noblesville township should appropriate $ 28,500 to aid the Anderson, Lebanon and St. Louis Railroad Company in constructing a railroad through the township, by taking stock in that company. In accordance with the petition, an election was ordered and held, and the amount voted for the purpose of taking stock in the railroad company. At its June session, 1872, the county board granted the prayer of the petition, and levied a special tax upon the property in the township to raise one-half of the amount appropriated. At its June session, 1873, the county board levied a special tax to raise the balance of the amount appropriated. The tax was ordered for the purpose of aiding the railroad company by taking stock therein.

The amount of the first levy was collected, and the railroad company having done work equal to that amount upon its line in the township, the money was paid over to it, and the township received stock in return.

The second levy has not been placed upon the tax duplicate for collection.

In 1875, and before the company had completed the construction of its road through the township, it executed a mortgage upon its franchises, rights, titles, privileges and immunities, and upon all of its property real and personal, and choses in action of every description, to two persons, as trustees for its bondholders. In 1878, suit was commenced in the circuit court of the United States for the District of Indiana, to foreclose the mortgage. A decree of foreclosure was rendered by that court in 1883. In 1885, W. P. Fishback, master in chancery, by order of the court, sold all of the property covered by the mortgage. It was purchased by Thomas C. Platt, as trustee of the bondholders. The sale was confirmed by the court, and the master in chancery was ordered to, and did, convey the property to appellee, the Midland Railway Company, a corporation organized by the purchaser and his associates for the express purpose of taking, in its own name, the title to the property so sold and purchased.

Immediately after executing the mortgage, the Anderson, Lebanon and St. Louis Railroad Company became and remains insolvent, and ceased work upon its road. After the purchase the Midland Railway Company took possession of the property, and, at the time this action was commenced, had so far completed the construction of the road through the township that construction trains might pass over it, but it is not in a condition for passenger and freight traffic.

The Midland Railway Company is a new and independent corporation, sustaining no relation to the old company. It has not issued nor provided for the issuing of any capital stock to Noblesville township on account of the taxes sought to be collected, nor has it made, or offered to make, any adjustment in relation to stock.

Upon the facts so set up in the return, we think it clear that the Midland Railway Company is not entitled to the money voted to the old company, and hence has no interest in the collection of the taxes. There is a clear distinction between appropriations by townships, by way of donations, and by way of taking stock in the company. The appropriation in controversy was voted under the act of 1869 (Acts 1869, Spec Sess., p. 92, et seq.). That act, as all subsequent acts and amendments, recognizes the distinction. The...