65 Ind. 445 | Ind. | 1879
This was a suit by tbe appellees, “ each the owner of personal and real property in Pike township,” in Warren county, Indiana, “subject to taxation for the year 1877,” as plaintiffs, against the appellant, Samuel Bittinger, treasurer of said Warren county, as defendant. The object of the suit was to obtain a perpetual injunction against the appellant, as treasurer of said county, restraining and enjoining him from collecting, or attempting to collect, a certain tax which had been levied and assessed on the taxable property in said Pike township, for the purpose of enabling said township to make an appropriation of thirteen thousand dollars to aid in the construction of the Mississippi and Atlantic Eailroad, in said township. Pending the litigation in the circuit court, the appellant presented to the court the verified petition of Benjamin E. Evans, praying, for the reasons therein stated, that he might be admitted as a party defendant in said action, and pei’mitted to defend the same, which petition the court overruled and denied, and to this ruling the appellant excepted, and filed his bill of exceptions.
To the appellees’ amended complaint the appellant’s demurrer, for a defect of parties defendants, and for the alleged insufficiency of the facts therein to constitute a cause of action, was overruled by the court, and his exception was entered to this decision. The appellant then answered the amended complaint, to which answer the appellees demurred, for the want of sufficient facts therein to constitute a defence to their action. This demurrer was sustained by the court, and to this decision the appellant excepted, and refused to plead further. Thereupon the court rendered judgment in favor of the appellees and against the appellant, for a perpetual injunction as prayed for, in the amended complaint, from which judgment this appeal is now here prosecuted.
In this court, the appellant has assigned, as errors, the following decisions of the circuit court:
*448 1. In overruling his demurrer to appellees’ amended complaint;
2. In overruling the petition of Benjamin F. Evans to become a party defendant in this action; and,
3. In sustaining the appellees’ demurrer to the appellant’s answer.
We will consider these alleged errors in their enumerated order, and decide the questions thereby presented.
1. In their amended complaint, the appellees alleged, in substance, that they were the owners of personal and real property in Pike township, in Wai’ren county, subject to taxation for the year 1877, of the assessed value, in the aggregate, for said year, of more than two hundred thousand dollars, as the same had been assessed and charged to them on the tax duplicate of said county, then in the hands of the appellant, as treasurer of said co unty; that, on the 9th day of March, 1877,.at a regular session of the board of commissioners of said county, a petition signed by thirty-one persons claiming to be freeholders and legal voters of said township was presented to‘ said board, asking an appropriation of the sum of thirteen thousand dollars by said township, to aid in the construction of the Mississippi and Atlantic Railroad in said township, a copy of which petition was filed with and made part of said complaint; that thereupon the said board, assuming to act under the authority of the act of the General Assembly of this State, approved May 12th, 1869, touching appropriations by-counties and townships in aid of railroads, took said petition under advisement, which proceedings were then and there entered upon the record of said board, a copy of which record was filed with and made part of said complaint; that, pursuant to the order of said board of commissioners, the auditor of said county gave notice of an election to be held at the usual places of voting in said township, -on the 21st day of April, 1877, by publication thereof in the “Warren Republican,” a weekly newspaper printed and published,
1st. Because of the condition contained in the petition and notice for the appropriation and election, that' said Mississippi and Atlantic Railroad Company should locate and construct a depot upon its line of road, within the corporation limits of the town of West Lebanon :
2d. Because the publication of notice was defective;
3d. That the notice itself was defective and void, for the reason it contained said condition ;
4th. The petition was void for uncertainty;
*451 5th. The notice of election was void for uncertainty;
6th. The pretended levy, so made as aforesaid by said board, was void for uncertainty ;
7th. That said pretended levy was void, because it was made for the whole amount specified in the petition, namely thirteen thousand dollars, whereas it should have been for at least but one-half thereof, and not exceeding one per cent, of the personal and real property in the township;
8th. Because the pretended levy, if construed to mean but one-half of the amount, specified in the petition, was moi’e than one per centum on the real and personal property in the township; and,
9th. That each and all of said papers, orders, votes and proceedings were void for'informality, irregularity, uncertainty and non-conformity with the statute in such case made and provided.
Wherefore the appellees prayed, that the appellant might be perpetually enjoined from attempting, in any manner, to collect said tax so voted, and said levy so made and extended, or any part thereof, and that, by the decree of the court, the whole of the' proceedings recited in said complaint might be declared null and void, and for all other proper relief.
As we have seen, the appellant demurred to the appellees’ complaint, upon two grounds of objection, to wit:
1. For a defect of parties defendants, in this, that the Board of Commissioners of Warren county and the Mississippi- and Atlantic Eailway Company, mentioned in the complaint, and the petitioners, who are mentioned in the complaint, and Bike township, in said Warren county, should each be a party defendant, each being a necessary and proper party to a complete and proper determination of the matters alleged in said complaint;
2. For a want of sufficient facts to constitute a cause of action,
Applying these rules to the case at bar, and the appellant’s demurrer for a defect of parties defendants to the appellees’ complaint, it seems very clear to us, that the demurrer was well taken, in so far as “ Pike township, of Warren county,” a body politic and corporate of that name and style, mentioned in the complaint, was con
But, as to the other parties named in this ground of demurrer, to wit, the Board of Commissioners of Warren county, and the Mississippi and Atlantic Railway Company, and the petitioners, who were mentioned in the complaint, it seems to us, that it can hardly be said that they, or any of them, were necessary parties to a complete determination of the questions involved in this action. It has been repeatedly decided by this court, in cases similar to the one at bar, that, until the tax was levied and collected, and a legal and valid subscription had then been made on behalf of the township, the railroad company did not have, and could not acquire, any legal right to or interest in the tax, which it could enforce by legal process. The Board, etc., of Crawford County v. The Louisville, etc., Air Line Railway Co., 39 Ind. 192; Sankey v. The Terre Haute, etc., Railroad Co., 42 Ind. 402; Petty v. Myers, 49 Ind. 1; Jager v. Doherty, 61 Ind. 528.
It would seem to follow, that, if the Mississippi and At
We fail to see any good or sufficient reason for making the Board of Commissioners of Warren county a party to the action. It is suggested, that the board should have been made a party defendant, “ so that if there had been, any error in the proceedings, it might have been corrected.” If there were error in the proceedings of the board, in connection with the tax in controversy, we do not think that such error could be corrected by the court below in this action. Whether such error was one of form or of substance, it seems to us, that any application for the correction of such error should be addressed, in the first instance, to the board of commissioners, as a court having jurisdiction of the matter, and not as a party defendant to an action in another court.
In their argument of this cause, the appellant’s counsel have failed to suggest any reason, and we can see none, for making the original petitioners for the appropriation in- aid of the railroad company, parties defendants to the action, as necessary parties thereto. It did not appear on the face of the complaint, that the interests of those petitioners, at the time of the commencement of this suit, whatever they might have been before that time, were necessarily adverse to the interests of the appellees in this action. Unless the interests of the petitioners appeared in the complaint to be ad: verse to those of the plaintiffs, the appellees, the petitioners, would not, we think, be necessary parties defendants ; for it can hardly be claimed, that they would be necessary parties to a complete determination or settlement of the questions involved in this action.
In this connection, we may properly consider and decide the question presented by the second alleged error,
We are clearly of the opinion that the court erred in overruling and denying the prayer of this petition. It can not be denied but that Benjamin E. Evans, as a resident citizen and tax-payer of Pike township, had an interest in the matter in controversy in this action; and if he believed, as he apparently did, that his interests, and the interests of Pike township, would not be subserved by the success of this suit, he ought to have been admitted as a defendant, and permitted to defend the action, in his oavh name and behalf. It is true, that the appellant, Bittinger, by reason of his office, was a proper and necessary party defendant; but, as he was neither a citizen of, nor an owner of property in, said Pike tOAvnship, it could hardly be expected that he would take the same active interest in the defence of this suit, as it may be presumed
We return now to the consideration of the second ground of the appellant’s demurrer to the appellees’ complaint, that it did not state facts sufficient to constitute a cause of action.
It wms alleged by the appellees in their complaint, that the tax in controversy was void, because of the condition contained in the petition and notice for the appropriation and election, that said Mississippi and Atlantic Railway Company should locate and construct a depot, upon its line of 'road, within the corporate limits of the town of West Lebanon. In their brief of this cause, in this court, the appellees’ learned counsel have insisted with earnestness and ability, that this condition was not authorized by the statute, and rendered null and void the petition and all the proceedings had thereon, which led to the levy of the tax. It is not claimed by counsel, that the petition in question did not contain every requisite of the statute, but it is claimed that the petition was void because it contained a condition, which the statute neither required nor prohibited. The petition asked for an appropriation by Pike township, to aid in the construction of the railroad in said township, and to the town of West Lebanon, by taking stock in the railroad company to the amount of $13,000 ; and the condition in the petition was, “ that said subscription of stock to said railway company be made upon the condition, that said company locate and construct a depot on their line of road, within the corporation limits of West Lebanon.”
The question for decision, as it seems to us, is this : Did this condition vitiate the petition, and render-it and all proceedings had thereunder absolutely void? The entire proceedings, from and including the presentation of the petition, until the. order levying the tax in controversy,
It is claimed by appellees’ counsel, in argument, that the doctrine of the case of The Indiana North and South R. W. Co. v. The City of Attica, 56 Ind. 476, is in point, and is decisive of the question we are now considering. But we fail to see how that case can have any possible bearing upon the case now before us. To our minds, the two cases are utterly dissimilar, in every respect, differing as widely from each other, as does a donation to a railroad company differ from a subscription to its capital stock.
It was alleged by appellees, in their complaint, that the tax levy was void, because it was made for the whole amount specified in the petition, namely, thirteen thousand dollars, whereas it should have been for at least but one-half thereof, and not exceeding one per cent, of the personal and real property in the township. We do not think that the tax levy, as made by the board of commissioners, by any fair construction of its terms, is open to the appellees’ objection. The order of the board for the levy of the. tax was as follows:
“And now comes on to be heard the matter of the petitiort from the citizens of Pike township, praying for an appropriation to be made to aid the Mississippi and Atlantic Railway Company in the construction of their railroad to the town of West Lebanon, in said township ; and the commissioners having heretofore, to wit, on the 8th day of March, 1877, entered an order for an election to be held in said township upon the subject-matter of said petition, and which said election was held under said order, on the 21st day of April, 1877, and a majority of the votes cast at said election being in favor of said railroad appro*459 priation, it is hereby ordered that the prayer of said petition be granted, and that a, special tax, aggregating the amount of thirteen thousand dollars, be levied upon real and personal property of said township of Pike, liable to taxation for State and county purposes, and that one per cent, shall be, and is ordered to be, extended upon the tax duplicates, for the purpose of paying in part said appropriation, and that the remainder of said sum of thirteen thousand dollars be deferred until June, 1878, which said special tax shall be collected as other taxes are collected for State and county purposes.”
Construing this order in connection with the petition and the proceedings had thereon, and the provisions of the statute applicable thereto, it seems to us that no one, however unlearned in the law, could mistake its terms or misapprehend what was meant or intended thereby. It is not to be expected that the orders of a board of commissioners will be drafted with that degree pf legal accuracy and precision of statement usually found in the orders, decrees and judgments of the circuit court. There aré no established forms or precedents for the orders of a board of commissioners ; and, if those orders are right in substance, their form will be of little consequence. We think the order above set out was substantially correct. The chief object of such an order is for the guidance of the county auditor, in entering the tax levied upon the -proper duplicate. It does not appear from any of the allegations of the appellees’ complaint, that the auditor of Warren county misunderstood, or was misled by, the terms of the order complained of. We think that the tax levied by the Board of Commissioners of Warren county, to enable Pike township to aid in the construction of the contemplated railroad within its limits, was not void for any of the reasons alleged in appellees’ complaint.
In our opinion, the court erred in overruling the appellant’s demurrer to the appellees’ complaint.
Biddle, «J., denies the constitutional power to levy the tax, and upon that ground dissents.
The judgment is reversed, at the appellees’costs,.and the cause is remanded, with instructions to sustain the appellant’s demurrer to the complaint, and for further proceedings in accordance with this opinion.