57 Ind. App. 285 | Ind. Ct. App. | 1914
This action was commenced in the Sullivan Circuit Court to enjoin the board of commissioners of Sullivan County from letting a contract for the building of an asphalt country road.
It is charged in substance, in the complaint, that appellant is a resident taxpayer of the city of Sullivan and Hamilton Township, Sullivan County, Indiana; that appellee is the duly elected board of commissioners of Sullivan County; that there is located in the city of Sullivan, Indiana, a street running north and south, known as Section Street, the south end of which for a distance of about 1,100 feet is the boundary line between said city and Hamilton Township, one-
A demurrer to the complaint was sustained, and appellant refusing to plead further, the court rendered judgment for appellee. The reasons assigned in support of appellee’s demurrer are: (1) the court has no jurisdiction of the person of defendants nor the subject-matter of the action; (2) the complaint does not state facts sufficient to constitute a cause of action. As a memorandum of the alleged defects of the complaint under the second cause for demurrer it is set out: (1) the complaint discloses that legal notice was given appellant and all other taxpayers of the county of the pendency of the petition to improve the highway described in the complaint before the board of commissioners of the county; (2) the complaint discloses that this is a collateral attack upon the judgment of the board of commissioners of Sullivan County, and is not an appeal from the decision of the board of commissioners.
It is very earnestly urged on behalf of appellant that error was committed by the trial court in sustaining a demurrer to the complaint because the action of the board of commissioners was in violation of Acts 1909 p. 353, and the proviso of §2 found on page 356 thereof, which reads as follows: “Provided, That the materials used in road
No error was committed by the trial court in sustaining the demurrer to the complaint. Judgment affirmed.
Note. — Reported in 107 N. E. 38. As to the remedies of taxpayers for illegal corporate acts, see 2 Am. St. 92. As to the right of a taxpayer, in the absence of a statute, to enjoin unlawful expenditures by a municipality, see 36 L. R. A. (N. S.) 1. As to taxpayers’ actions, see Ann. Cas. 1913 C 884. See, also, under (1) 22 Cyc. 775; (2) 11 Cyc. 405; (3) 37 Cyc. 222; (4) 22 Cyc. 774, 775.