Board of Commissioners v. Brown

28 Ind. 161 | Ind. | 1867

Gregory, J.

— Ellwood Brown, a citizen of Fall Creek township, in Madison county, on behalf of himself and the other citizens of said township, filed his complaint against, the appellants to enjoin the assessment and collection of taxes against the citizens of that township, for the purpose of raising a revenue for the payment of certain bonds issued by order of the board of commissioners for providing means with which to pay bounties to drafted men and volunteers, to fill the last call of the President of the United States for 300,000 men.. A demurrer to the complaint for want of sufficient facts was overruled. Trial by the court, and finding for the plaintiff. A motion for a new trial was overruled, and a final, decree rendered: 1. The order of the board of commissioners made at their June session, 1865, directing the tx'easurer of Madison county to pay one hundx’ed dollars in bonds to persons holding mustex’-in cex’tificates under the call of the Presidexxt of the United States, of December, 1863, for 300,000 men, and who never received any bounty from Madison county, was declared void, and the defendants and their successors in office wex'e enjoined froxn paying any part of such bonds, and from levying and collecting from the tax payers of Madison county any tax for such purpose. 2. The defendants and their successors in office were restrained fx’oxn collecting, upon levies theretofore made upon the tax payers of Madison county, any funds for the payment of xnilitary bonds issued to drafted men that were xxever mustered into the service of the United States, and from paying or redeeming such bonds with funds now belonging to said county of Madison, x’aised either by taxation or otherwise. 3. The defendants and their successors in office were enjoined from paying bonds issued to remunex’ate persons for moneys advanced on private account to induce volunteering. 4. The defendants and their successors in office were enjoined from the collection of any tax assessments against the ajipellee and other tax payers of Fall Greek township, made by ox'der of the board, for the year 1865, for the purpose of raising funds to pay and x-edeem the military bonds of Madison county, issued under the orders of the board of commissioners of January 12th, and February 16th, 1865, purportixxg to authorize the issue of bonds by the treasurer of Madison couxxty, in the sum of $200,000, to be paid to drafted men and volunteers in sums of $400 each. 5. The defendants and their successors in office wex-e enjoined from appropriating towards the payment of any of the military bonds of the county of Madison, issued under the orders of the board of commissioners of January 12th, and February 16th, 1865, directing the issue of $200,000 of bonds, to be paid to drafted men and volunteers in sums of $400 each, the funds theretofore collected from the tax payers of Fall Greek township under the assessment of 1865. b. The order of the board of commissioners made on the 16th of February, 1865, directing the treasurer of Madison county to furnish the citizens of Fall Greek township a sufficient amount in bonds of the county to pay eleven men $400 each was declared void; and the defendants and their successors in office were enjoined from furnishing such bonds to said citizens, and from paying any such bonds that had been issued. The appellants excepted to the decree. The evidence is set out in the record.

The main question involved was raised by a motion to strike out a portion of the complaint, and was also involved in the motion for a new trial. It is claimed that the citizens of Fall Greek township are exempt from the payment of taxes to meet the liability incurred by the county for bounties to drafted men and volunteers under the call of the President of the United States, on the ground that they had filled their quota before the orders of the board of commissioners were made. This question was considered in King and Others v. Course and Others, 25 Ind. 202. It is there said, that “the townships of the county, in their corporate capacities, had no power to levy taxes and raise funds for these purposes. The board of commissioners, in the exercise of their limited legislative power, act for the whole county. The necessities of the public service, in which all were deeply interested, required that the county should furnish a given number of men for the national defense, and even though a portion of the required number had been secured, we do not think that fact furnished any valid reason why the commissioners should not afford their aid to the government, in assisting to promptly raise the residue. It would certainly be, in the language of the act of 1865, ‘procuring or furnishing volunteers or drafted men for the army of the United States,’ and thereby aiding the government in suppressing the rebellion.” Ve think that the fact that Fall Creek township had furnished her quota before the orders of the board of commissioners of January 12th, and February 16th, 1865, were made, does not exempt the tax payers of that township from the burden of taxation for the purpose of meeting the liability incurred by the county under these orders. It is claimed that the orders of the board of commissioners are void because they wore made at special sessions, and that the record made by them does not show that the commissioners were called to meet by the auditor of the county; and that the order of the 12th of January, 1865, was made at an adjourned meeting of the board. The commissioners’ recorff shows that the meeting on the 11th of January was in pursuance of a call previously made by Janies M. Dickson, the county auditor, and that the board adjourned until the next day. The commissioners, being lawfully in session, had the right, in our opinion, to adjourn from day to day until the business before them was completed.

It is true that the commissioners’ record does not show that the meeting in February was in pursuance of the call of the auditor, but the record in this case shows that a notice was issued by the county auditor for the meeting on the 16th of that month, stating- the purpose of the call. This notice was served by the sheriff' on each of the commissioners. This in our judgment is sufficient. It is not necessary that the commissioners’ record should show the call; it may be shown aliuncle.

The board of commissioners, at their June term, 1865, passed the following order: “ Ordered by the board, that the treasurer pay one hundred dollars, in bonds, to persons holding- muster-in certificates under the call of the President, of December, 1863, for 300,000 men, and who never received any bounty from Madison county under said call.” There is evidence tending to show that bonds issued in April, 1865, were paid out under this order. This case was tried at the October term, 1866. The legislature, by an act approved March 11, 1867, legalized all bonds theretofore issued by and under the authority of the boards of commissioners of the several counties in this State, of the denomination of one hundred dollars, dated April 3d, 1865, due in one year after the date thereof, bearing interest at the rate of six per cent, from date, for the purpose of paying bounty to persons who had received no bounty from such counties, and had been mustered into the United States service, under the call of the President for 300,000 men, in the month of December, 1863, for the suppression of the rebellion. Acts 1867, § 1, p. 26. It is claimed by the appellants that this act legalizes the bonds issued under the order of June, 1865. This is true, if the bonds are correctly described in the legalizing act. But only bonds of the denomination of one hundred dollars, dated April 3d, 1865, bearing six per cent, interest, due in one year after the date thereof, are embraced. The evidence is not sufficiently clear to enable us to say that the bonds are of the kind described in the act. But as the judgment below must for other reasons be reversed, this matter will be open for further investigation in the court below. It is proper to say that no question of parties is raised by the demurrer for want of sufficient facts.

It is urged by the counsel for the appellee, that the order made by the board of commissioners at the June term, 1865, levying a tax of one dollar and sixty cents on each hundred dollars \yorth of property in the county, real or personal, for county purposes, and four' dollars and seventy-five cents on each poll, is void, for the alleged reason that at the same time the board of commissioners ordered the treasurer of Madison county to pay one-half of each military bond, issued by the county, out of the taxes which might be collected on the duplicate, of that year. The fact that the board of commissioners contemplated an unlawful use of the county revenue levied for general purposes, would not make void the order directing the levy. Board of Commissioners of Harrison County v. McCarty, 27 Ind. 475.

It is claimed by the appellants’ counsel that the county bonds issued under the several orders of the board of commissioners are commercial paper, and valid in the hands of bona fide holders. Rot being payable at a bank in this State, they are not within the statute. 1 G. & H. § 6, p. 450. By the law as now recognized in this country, monied obligations payable to bearer, and which pass from hand to hand by delivery, are entitled to all the privileges of commercial paper. The bonds in question are payable to bearer, but do not pass by delivery. 1 G. & H. § 20, p. 251. The fact that the bonds in question may have passed by assignment into the hands of bona fide holders does not deprive the county of any defense which it would have against the parties to whom they were issued.

The motion to strike out that part of the complaint designated as sections 23, 28 and 29, ought to have been sustained.

In Nave and Others v. King and Others, 27 Ind. 356, this court held that the proviso to the second section of the act of March 3d, 1865, is not a limitation of power, but that the board of commissioners might order an assessment sufficient to meet such liabilities as they matured.

The overruling of the motion to strike out sections 10, 15, 17 and 18 of the complaint was a harmless error, as no relief was granted on the matters therein charged.

The order of the board o.f commissioners to reimburse Fall Creek township for eleven men furnished by her was not legalized by the act of March 3d, 1865, and being made without authority of law, is void.

Most of the questions involved in this case have been considered and passed upon by this court, and we adhere to the previous rulings. See Coffman v. Keightley and Another, 24 Ind. 509; Oliver v. Keightley and Another, id. 514; The Board of Commissioners, &c. v. Bearss, 25 Ind. 110, and the cases cited above in this opinion.

J. Davis, E. B. Goodykoontz and J. W. Sansberry, for appellants. H. Craven and A. D. Williams, for appellee.

The judgment is reversed, with costs, and the cause remanded, with directions to set aside all the proceedings subsequent to the motion to strike out portions of the complaint, and to sustain said motion as to that portion thereof designated as sections 23, 28 and 29, and for further proceedings.