The Board of Commissioners of Marion County v. Center Township

• Decision Date: 06 October 1885
• Docket Number: 12,360
• Citation: 2 N.E. 368,105 Ind. 422
• Parties: The Board of Commissioners of Marion County v. Center Township et al
• Court: Indiana Supreme Court

2 N.E. 368

105 Ind. 422

The Board of Commissioners of Marion County v. Center Township et al

No. 12,360

Supreme Court of Indiana

October 6, 1885

Reported at: 105 Ind. 422 at 443.

From the Marion Superior Court.

The judgment is reversed at the costs of the Center township, and the cause remanded.

S Claypool and W. A. Ketcham, for appellant.

C Byfield, L. Howland, S. M. Shepard, J. B. Elam, C Martindale, H. N. Spaan, J. W. Baird, A. C. Harris and W. H. Calkins, for appellees.

Zollars, J. Elliott, J., did not take any part in the decision of this case.

OPINION

Zollars, J.

This case was disposed of below upon a special findings of facts and conclusions of law thereon. Whether or not the conclusions of law are correct, is the only question for discussion by this court.

In the examination of that question we shall confine ourselves to the points made by counsel in support of and against the conclusions of the trial court.

In March, 1870, the voters of Center township, upon a petition and order of the county board, as provided by the act of 1869, Acts 1869, Spec. Sess., p. 92, voted aid to the Indiana and Illinois Central Railway Company, in the way of a donation. The donation was voted upon a condition, as expressed in the petition, that no part of the money should be paid to the railway company until it had furnished a bond, with security, to the approval of the county board, that it would locate and build its principal machine shops in the township. At the June session, 1870, the county board granted the prayer of the petition, and made an appropriation and donation of the amount voted to aid in the construction of the railroad, made a levy to raise the amount, and ordered it placed upon the tax duplicate for collection. The appropriation and donation were made upon the condition of the filing of the bond as provided in the petition. Whether or not the whole amount was ordered to be collected in one year, is not shown by the special finding of facts, but it is shown that it was collected in the years 1871, 1872 and 1873, and passed into the county treasury. No question is made in argument as to the regularity and legality of the proceedings by and through which the money reached the treasury as a donation to the railway company. The railway company, within a year after the levy of the tax, commenced work upon its line of road in Center township, and at other points along its line, but did not complete its road ready for use within three years from the time the tax was levied. In 1873, and before the expiration of the three years, the county board made an order extending the time for the completion of the railroad until the 4th day of June, 1874. The road was not completed within the time thus extended.

In April, 1872, the Indiana and Illinois Central Railway Company executed and delivered to the Union Trust Company, of New York, for the benefit of the holders of its bonds, a trust deed to all of its property, rights of way, and rights of every kind, including its right to the donation voted by the township. The company having defaulted in the payment of the interest, the bondholders appointed a committee to have the trust deed foreclosed, bid in the effects of the railroad company, covered by it, for them, to organize a new company for the completion of the railroad on the line as located, in which new company the bondholders should receive and hold stock in proportion to the amount of their bonds, all of which was carried out. In January, 1875, the trust deed was foreclosed, and all of the property and rights covered by it were sold and purchased by the committee for the bondholders. In September, 1875, articles were filed with the secretary of state incorporating the bondholders under the name of the Indianapolis, Decatur and Springfield Railway Company, for the purpose of completing the railroad projected by the old Indiana and Illinois Central Railway Company. On the 4th day of November, 1875, this new company was consolidated with the Springfield, Decatur and Indianapolis Railway Company, under the name of the Indianapolis, Decatur and Springfield Railway Company. This company at once proceeded to build the railroad, and complete it from Indianapolis to Springfield, Illinois, but not ready for use along its whole line, nor in Center township, until 1880. The line of road, as projected by the old Indiana and Illinois Central Railway Company, was to begin at the city of Indianapolis, "and extend thence as nearly west as should be found practicable and convenient, by way of, or within half a mile of the towns of Danville, Rockville and Montezuma, in the State of Indiana, and Decatur, in the State of Illinois, in a direction leading to the city of Springfield, Illinois, and passing through the counties of Marion, Hendricks, Putnam, Parke and Vermillion, in the State of Indiana."

The road as built by the Indianapolis, Decatur and Springfield Railroad Company is upon the same general line projected by the Indiana and Illinois Central Railway Company, but the towns of Danville and Rockville are left from five to ten miles to the south. The bond for the shops was not and has not been given, but the principal machine shops of the Indianapolis, Decatur and Springfield Railway Company were erected in the township in 1880.

In 1877, after the foreclosure of the trust deed, the organization of the new company and the consolidation, the township, on the theory that the railroad company had forfeited all rights to the money, brought an action against the board of county commissioners to have the amount turned over and into the township fund. The township recovered a judgment for the full amount, with interest--$ 71,102.48--in December, 1880. Neither the taxpayers of the township nor the railroad company were parties to that suit. In 1881, by an arrangement between the township trustee and the county board, $ 13,375.55 was paid to the township trustee; the judgment of 1880 was set aside, and a judgment was entered for $ 58,202.93, to draw five per cent. interest, and to be paid in instalments. Since then, and on the 28th day of June, 1882, the county board paid to the township trustee $ 2,089.85 of the principal of the judgment, and $ 5,820.30 interest thereon, of which amount $ 2,910.15 was paid on the 28th day of June, 1882, and $ 2,910.15 on the 7th day of February, 1883. The board having neglected and refused to make further payments, without a bond of indemnity against the claims of the taxpayers and the railway company, the township, in January, 1884, filed what is termed an amended complaint in the original cause between the township and the county board. In the complaint the judgment of 1880 is recited, the setting of it aside in 1881, the arrangement then entered into between the township and board, and the failure of the board to carry it out. It is sought by the complaint to set aside that arrangement and judgment, upon the ground that it is too uncertain to be enforced, that the trustee could not thereby bind the township, and to restore the original judgment of 1880, and the rights of the township thereunder. The Indianapolis, Decatur and Springfield Railway Company was made a party defendant, upon the ground that it was, and is, asserting some right to the money.

The railway company filed an answer, and also a cross complaint against the township, the board of commissioners and certain named taxpayers of the township. These taxpayers came in and filed a cross complaint against all the other parties, and asked that the amount of tax paid by them severally should be refunded. Prior to the 18th day of March, 1881, at which time the county board paid the $ 13,375.55 to the township trustee and entered into the arrangement of settlement with him, the Indianapolis, Decatur and Springfield Railway Company had demanded the money from the county board. Prior to that time, also, the said taxpayers had demanded the amounts severally paid by them, but they did not make any demand within two years after the passage of the act of December 24th, 1872, Acts 1872, p. 56, nor within two years after June 4th, 1874. With the exception of the amounts paid the township trustee, as above stated, the money is in the county treasury, under the control of the county board, to be paid to the party rightfully entitled thereto.

We have thus given a general statement of the claims of the several parties and the leading facts embodied in the special finding of facts. Upon the facts so found the court below found as conclusions of law:

First. That the Indianapolis, Decatur and Springfield Railway Company is not entitled to any part of the fund.

Second. That the taxpayers are not entitled to any part of the fund.

Third. That the township is entitled to receive from the board of commissioners $ 64,202.07, and that the board is entitled to costs from the taxpayers and railroad company.

Judgment was rendered accordingly, and affirmed at general term of the superior court.

If the Indianapolis, Decatur and Springfield Railway Company is entitled to the money, we shall have no occasion, under the issues, to consider the rights of the other parties as between themselves. Of course, no former arrangement or adjudication between the township and the county board can affect the rights of the railway company or the taxpayers, as they were not parties thereto.

The donation was voted, made and collected under the act of 1869 Acts 1869, Spec. Sess., p. 92. There was no time fixed in the petition, nor in the order by the board, within which the shops should be built. And they having been built without a bond, it is not claimed by any of the parties that the failure to give a bond in any way affected the rights of the railway...