The State ex rel. Dayton Gravel Road Company v. The Board of Commissioners of Tippecanoe County

• Decision Date: 02 April 1892
• Docket Number: 16,485
• Parties: The State, ex rel. Dayton Gravel Road Company et al., v. The Board of Commissioners of Tippecanoe County
• Court: Indiana Supreme Court

30 N.E. 892

131 Ind. 90

The State, ex rel. Dayton Gravel Road Company et al., v. The Board of Commissioners of Tippecanoe County

No. 16,485

Supreme Court of Indiana

April 2, 1892

From the Tippecanoe Circuit Court.

Judgment affirmed.

A Rice, W. S. Potter, J. R. Coffroth and W. R. Coffroth, for appellants.

J. B Milner, J. M. La Rue, D. P. Vinton and H. H. Vinton, for appellee.

OPINION

Coffey, J.

This was a suit in the Tippecanoe Circuit Court, by the appellant against the appellee, to compel the latter, by mandamus, to complete the purchase of the toll-road therein described. The court sustained a demurrer to the petition, and the propriety of this ruling is presented for our decision. So much of the petition as is necessary to an understanding of the questions involved is, substantially, as follows:

The relator, the Dayton Gravel Road Company, is a gravel road corporation, duly organized under the laws of the State of Indiana, and has been such for more than twenty years last past, and was at and before the 15th day of October, 1890, and for more than twenty years theretofore, the owner, and in the possession of a line of gravel road lying and being situate in the townships of Fairfield, Wea and Sheffield, in said county. Said gravel road was, at the time aforesaid, and still is, a toll road. On the 15th day of October, 1890, there was presented to the defendant, * * then in special session, a petition signed by more than fifty freeholders and citizens of said townships of Fairfield, Wea and Sheffield, wherein said gravel road is located, representing to said board that said gravel road is a toll road, and asking said board to submit to the voters of said townships the question of purchasing said gravel road, and to take the necessary steps provided by law for holding an election by the voters of said respective townships as to whether said gravel road should be purchased.

At the time of presenting the petition the relator Jacob Benton was a citizen, freeholder, and taxpayer of Sheffield township, and the relator William S. Potter was a citizen, freeholder and taxpayer of Fairfield township, and they yet so remain.

Acting on said petition the board, on the 15th day of October, 1890, appointed Henry D. Miller, on behalf of the board, Francis Acheson, on behalf of the gravel road company, and Everett B. Vawter, the surveyor of Tippecanoe county, viewers, to view said road and determine the consideration to be paid for the same.

On the 8th day of November, 1890, they made their report to the board, then in special session, in which they described the road as the same is described in this petition, and fixed the consideration to be paid therefor at the sum of ten thousand dollars.

On the 19th day of November, 1890, the board submitted to the gravel road company an offer to purchase said road for that sum, and required it to accept or reject, in writing, said offer, on or before the last day of the December term of the board; and on the 13th day of December, 1890, the gravel road company did accept said offer, and filed its written acceptance thereof with said board; and thereupon the board ordered a special election to be held in the townships of Fairfield, Wea, and Sheffield, on Saturday the 24th day of January, 1891, by the voters of said townships, at which election it was ordered there should be submitted to the voters of each of said townships the question of purchasing said gravel road, for the consideration above stated. It is alleged that the proper and legal notice of said election was given; that the election was held on the day named, resulting in a majority of six hundred and sixty in favor of the purchase of said road, which vote was duly certified to the board by the proper election officers; that on the 29th day of January, 1891, the gravel road company tendered to the board a deed for said gravel road, and at that time said road company was not indebted to any person; that thereafter, to wit, on the 3d day of February, 1891, the board, when in special session, then and there refused to make an order for the purchase of said toll and gravel road, and to issue the bonds of the county therefor to said company, and so entered such refusal upon its records.

Prayer for a writ of mandamus requiring the board of commissioners to make an order to purchase said road, and to issue to the relator, the Gravel Road Company, bonds of the county, dated February 3, 1891.

It is earnestly insisted by the appellee that the appellants have mistaken their remedy, and that the facts set up in the petition do not make a case authorizing a resort to the...