147 Ind. 476 | Ind. | 1897
This action was instituted in the Jackson Circuit Court by the State, on the relation of relators, Brown and Mills, for a writ of mandate against the Board of Commissioners of the County of Jackson, and the other apellants as members thereof, to compel them to order a special election to enable the voters of said county to determine whether the county seat of Jackson county should be changed from Brownstown to Seymour. The action is based upon an act of the legislature, entitled “An Act providing for the relocation of county seats in counties of this State having an area of more than five hundred square miles,” etc., passed March 9, 1895. (Acts 1895, p. 217.) Upon application the cause was venued to the Scott Circuit Court. Appellants, after demurring to the complaint upon the ground of insufficiency of facts, filed an answer in one paragraph, wherein they alleged that the copy of the record attached to the. affidavit of the Auditor of State, alleged in the complaint to have been filed with the petition, presented to the board of commissioners, failed to show the number of square miles in Jackson county, and also failed to show that the number of square miles in said county was 508, and further that it fails to show anything as to the number of square miles in said county. Appellees replied to this answer by a denial, and upon the issues joined a trial by the court resulted in a- peremptory writ of mandate being awarded against ap
The complaint, among other things, substantially alleges: That the relators, Brown and Mills, are and have been freeholders and legal voters of Jackson county for five years last past, and signed the petition for the removal of said county seat presented to the board on the 3d day of June, 1895; that the individual defendánts were members of the board of commissioners of said county; that on the 3d day of June said board was convened in regular session and the petition for the removal of said county seat was presented, signed by the relators and sixty-two other freeholders and legal voters of the county, setting forth the following facts:
1st. That the county of Jackson contains an area of more than five hundred square miles, being five hundred and eight square miles, as shown by the record in the office of the Auditor of State.
2d. That each of the petitioners is a freeholder and legal voter of the county of Jackson.
3d. That they all desire a removal of the county seat from Brownstown to Seymour.
4th. That they desire an election to be held to determine that question.
That attached to the petition so presented was the affidavit of Ephraim Ahlbrand, deposing that he is a freeholder of Jackson county, Indiana; that the persons who signed the petition for the removal of the county seat to which the affidavit is attached are freeholders and legal voters of said county, and that the names attached to the petition are as in said complaint
That said board received the petition, affidavit, and bond, and caused the same to be entered upon its records, but did not cause the affidavit of the Auditor of State to be entered at full length upon its records.
That said board refused to make an order for any special election as required by the statute, but did make and enter of record an order refusing the said petition and dismissing the same.
The complaint then alleges that under the statute of March 9,1895, it was the imperative duty of the board of commissioners to order such election, and that the commissioners had refused to perform such duty, and that, unless compelled by order of the court, they will not perform such duty.
Prayer for an alternative writ of mandate, requiring the board and the members thereof to make and enter an order for such election, and that upon the final hearing a peremptory writ of mandate issue. Upon the filing of this complaint an appearance for the defendants was entered, and the issuing of an alternative writ of mandate was waived.
The contentions of appellants’ learned counsel that the complaint is insufficient to entitle appellees to the relief demanded, briefly stated, are as follows: That the act of March 9,1895, supra, is special and local and
The first section of the act in controversy provides: “That at any regular session of the board of commissioners of any county in this State, having an area of more than five hundred square miles, fifty or more freeholders and legal voters of said county may present to said board of commissioners a petition in writing, setting forth the following facts:
“First. • The number of square miles the county mentioned in the petition contains, as shown by the record thereof on file in the office of the Auditor of State.
“Second. That said petitioners are freeholders and legal voters of said county.
“Third. That said petitioners desire the removal of the county seat of said county from the place where it is located, and that it be relocated at another place in said county.
“Fourth. The name of the city or town within the corporate limits of which said petitioners desire said county seat to be relocated.
“Fifth. That said petitioners desire an election to be held for the purpose of determining whether or not said county seat shall be relocated.”
Section 2 requires the filing of a bond by the petitioners, or some of them, payable to the treasurer of the county, in the penalty of a thousand dollars, with freehold surety to the approval of the treasurer, conditioned for the payment Of expenses occasioned by the election.
Section 3 requires that upon the filing of the petition, and bond, the board shall cause the same to be entered at full length upon their records, and within three days after shall make an order for a special election in the various precincts in the county for the purpose of determining whether the county seat shall be relocated as prayed.
The remainder of section 3, with sections 4, 5, 6, 7, 8, and 9 provide the details and regulations of such election.
Section 5, in part, providing that if in any precinct the sentiment is so unanimous in favor of or against relocation that competent judges and clerks cannot be found therein,then persons competent to serve may be selected from other precincts and the right to vote is given to such persons in the precincts where they serve as such election officers.
Section 10 provides for an appraisement of the value of the court-house and jail at the present county seat.
Section 12 requires the petitioners to procure a deed of conveyance of an acre of land for the court-house, and a quarter of an acre contiguous for the jail; and also plans and specifications for the erection of such court-house and jail, and deliver the same to the judge of the circuit court of the county. It further provides that the title of said sites, and the plans and specifications for said court-house and jail, shall be submitted to the judge of the circuit court, and if he finds the same satisfactory, he shall approve the same, such approval to be shown by an entry on the records of the circuit court, either in term or vacation.
Sections 13, 14, and 15 relate to the details in the erection of the court-house and jail, the accommodations of such buildings, and the cost thereof. ’
Section 16 provides for the removal of the records, etc., to the'new buildings upon their completion.
Section 17 provides as follows: “For the purpose of providing funds for the erection of said buildings, it is hereby made the duty of the township trustee of the ■township in which said new county seat is to be relocated, and in which said hew court-house and jail are to be built, to annually levy a special tax of one-half of one per cent, on each one hundred dollars of the taxable property of said township and incorporated towns and cities therein. Said tax shall be known as the court-house and jail tax, and shall be
Section 18 authorizes the issuing of township bonds in anticipation of such levy, and prescribes the form thereof.
Section 19 provides for the sale of such bonds and the payment of the proceeds to the treasurer of the county, to be by him paid over to the contractor.
Section 20 forbids the relocation, under the act., of any county seat within twenty miles of the boundary line of the State, or in any case where a sum exceeding $20,000 has been expended in the erection or repair of the court-house or jail within three years next before the 1st day of January, 1895. This same section provides that this act shall not repeal the act of' March 9,1889, touching the removal of county seats.
Section 21 provides that in case any officer or person required to perform any duty under this act fails, neglects, or refuses to perform the same, he may be compelled so to do by writ of mandate on the application of one or more of the petitioners in the circuit court of the county, and that for an intentional and willful failure or neglect to perform such duties he may be removed from office.
Section 22 provides that no part of the expense resulting from such relocation shall be a charge upon the county, nor shall the county assume any liability therefor, but the township in which such relocation is made shall be at the sole expense thereof, including the cost of the county buildings.
Section 23 makes the voting or offering to vote by an
Section 24 makes any officer or person failing or refusing to promptly discharge any duties required by the provisions of this act subject to a penalty of $5,000.00, to be recovered in a civil action in any court of competent jurisdiction in the name of any one of the petitioners provided for in the first section of the act, etc., and further provides that the penalty when collected shall be paid into, the county treasury for the benefit of the common schools of such county.
An examination of the act in question fully discloses its special and local character, and evidently it was enacted for the sole purpose of bringing Jackson county, and no other county, within its provisions. The subject of the statute, however, is the relocation of county seats, and it is one over which, in the absence of a constitutional inhibition the legislature has plenary power and control. It has been repeatedly affirmed by the decisions of this conrt, and the question is now settled beyond controversy, that the subject-matter of the act in dispute is not one which falls within the interdiction of section 22, article 4, of the constitution which forbids the passage of local or special laws upon the subjects therein enumerated. Mode v. Beasley, 143 Ind. 306. Neither can we hold the law Invalid by reason of the provisions of section 23 of article 4, which requires that “in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the state.”
The interpretation placed upon this section of the constitution has put at rest the question that its re
The insistence that the act in question is antagonistic to the tenth specification of section 22 for the reason urged, that it regulates county and township business, is not tenable. The term “business,” as employed in this specification of section 22, has been interpreted by our decisions to mean or apply to the usual affairs of the County and township, the conduct of which engages the services of the officers of these respective municipal corporations. It has no reference whatever to an act which can be done in a particular case under the authority of a special law of the character of the one in question, the principal purpose and subject of which is the relocation of a county seat. An act providing for the removal of a county seat cannot be said to be a law regulating county business within thé meaning of the constitutional provision above mentioned. Mode v. Beasley, supra, and authorities there cited. Woods v. McCay, 144 Ind. 316.
Neither can the contention of appellants that this, statute violates the provision of section 22; which denies the legislature the power to regulate the practice in courts- of justice by a special law, be sustained. It is true that section 21, of the act in question, provides
Section 17 of the act provides for a levy annually of a special tax upon all of the taxable property of the township wherein the county seat is to be relocated, and in which the new county buildings are to be constructed, until a sufficient revenue is raised to pay the expense of their construction. Section 18 provides for the issuing of bonds in anticipation of the collection of the taxes levied. Section 19 provides for the sale of these bonds, and section 22 provides that the expenses and liabilities incident to the relocation of a county seat, under this act,, shall not become a charge against the county, but the whole shall be paid by the township in which the county seat is relocated. Counsel for appellants insist that these provisions of the act
Neither of these propositions can be sustained. The entire power of the removal of a county seat being vested in the legislature, and it having the authority to exercise it by the enactment of a special law where a general one is not applicable, it has the right to provide in the act the special means or methods to be employed to carry into effect the principal subject upon which it has legislated. State v. Kolsem, supra.
It is evident that a county seat, relocated under the provisions of this act, would create the necessity for the erection at the new site of county buildings. In order to accomplish the construction of these, a revenue must be raised by means of taxation. The raising of such a revenue is therefore, a matter necessarily incident to and connected with the principal subject. As a method of raising the money to defray the expenses of the new buildings the legislature saw fit to create a special taxing district out of the township within which the county seat was to be relocated, and provide for a levy of a special tax upon the property therein for the purpose of raising funds to pay the expenses of the construction of such public buildings. In providing for the levy of this tax upon the township in which the county seat was to be relocated, the legislature proceeded upon the theory, and took into consideration the fact, that those persons residing and
The special benefits and conveniences which will result to those residing within the immediate locality in which a county seat is located and maintained by reason of the enhancement of the value of their property, are facts which are well recognized by all and generally serve to stimulate the inhabitants of such localities in their earnest efforts to secure the location of the county seat in their own vicinity, and no doubt it was the knowledge of this fact which prompted the legislature in requiring the inhabitants of the particular township to bear the burden of this special tax for the purpose designated. This court in Marks v. Purdue University, supra, recognized the doctrine that the law making power may impose the expense of a public improvement upon a particular locality which will receive benefits derived therefrom. The power of taxation is vested in the legislature. It has the right to provide for the rate to be assessed and the locality or district upon which the taxes are to be imposed. Courts cannot interfere with such legislative acts upon the ground that they impose oppressive taxes upon the taxpáyers, so long as the legislature keeps within the limits of its authority and violates no express provi
In Kirby v. Shaw, supra, an act of the legislature of Pennsylvania was involved which authorized the sum of $500.00 to be annually levied as a tax for a certain period upon the borough of Towonda, in addition to the usual levies for county and other purposes, to defray the expenses of a county court-house and jail erected in said borough. This tax was resisted as an unequal burden, as between the taxpayers of the borough and those of the county. The law was sustained, the court holding that it could not interpose and set it aside upon the grounds that the tax was unequal and unjust. The court in that decision referred to the question of special benefits that were conferred upon the people living within this particular town by reason of the county seat being maintained therein, and it was said that for this reason they had no right to complain of the additional taxes which the legislature had imposed upon their property. The restriction of the constitution upon the passage of local or special laws for the assessment and collection of taxes for county and township purposes, was intended to apply to such as were levied to raise revenue for the usual or general purposes of the county or township, and has no reference to taxes or assessments levied, as provided for under the act in controversy, upon some, special taxing district, for some special public improvement or purpose, which will result in special benefits to the persons or property within such district. See Law v. Madison, etc., Turnpike Co., 30 Ind. 77. On no view of the question can it be asserted that the statute conflicts with the fundamental law for the reason that it creates a special district out of the township wherein the new county seat is to be located, and confines the assessment of the tax to construct the
The legislature in its wisdom having authorized the entire tax for the construction of these new buildings to be assessed against, the taxable property of those whom in reason it considered would be immediately benefited by the relocation of the county seat, we are aware of no provisions of our constitution, under the circumstances, which would deny it the power to place the whole burden where it deemed it proper to rest.
Under the -provisions of the statute, the tax provided to be levied is uniform and equal throughout the particular district upon which it is authorized to be assessed, and in this respect the law responds to the requirements of the constitution. Bright v. McCullough, 27 Ind. 223; State Bank of Indiana v. City of New Albany, 11 Ind. 139; Wiley v. Owens, 39 Ind. 249; Loftin v. Citizens' Nat. Bank, 85 Ind. 341.
The prohibition of the appropriation of private property, under section 21 of our bill of rights, refers to the taking of such property by the State under the right of eminent domain, and in no sense does it extend to the raising of a revenue for public use by the means of legitimate taxation. City of Aurora v. West, 9 Ind. 74; Cooley’s Const. Lim. (6th ed.), p. 613.
There is really nothing in the contention of appellants that the act is repugnant to this feature of the constitution. Neither do we think that the provisions of section 12 can be successfully questioned on the ground that they are within the inhibition of article 3 of the constitution. It is true that these provisions designate certain duties which the judge of the circuit court is authorized to perform, which partake more of a ministerial than a judicial nature. That the legislature, however, may clothe judicial officers with such powers, as it has under this statute, has been ex
It is next contended that the complaint is bad because: First, it shows that the appellees .have a remedy by appeal; second, because the power conferred upon the board of commissioners under the provisions of this statute is judicial; third, that it fails to negative that part of section 20 which excepts from the provisions of the act counties where a sum exceeding $20,000 has been expended in the erection or repair of the court house or jail of the county within, three years prior to January 1st, 1895; fourth, that the legislature had no power to -make the affidavit of the Auditor of State conclusive evidence of the facts therein contained. The entire scope of this act clearly indicates that it was the intent and purpose of the legislature to make the action of the board of commissioners, in considering the petition and in ordering the special election, purely ministerial, and not judicial. The affidavits required to be attached to, and accompany the petition, were declared to be conclusive evidence of the truth of the facts required to warrant the commissioners in ordering the election. Nothing in the nature of an adversary proceeding was contemplated. When the petition, affidavits, and bond were filed, as provided by the act, which requirements the complaint avers were complied with, the duty of the board, under the statute, was so plain and imperative that no element of discretion can be said to enter into its performance; and it is manifest, also, that under its provisions the board was not invested with judicial functions. Board, etc., v. Davis, 136 Ind. 503; Board, etc., v. Heaston, 144 Ind. 583. The proceeding was a special one, having for its object the relocation of a county seat, being a matter over which the legislature had full control. It was based upon a special
The affidavit of the Auditor of State contained a copy of the surveys of Jackson county, on file in his office, and he stated in his affidavit that said record showed that the county contained an area of more than five hundred square miles, to-wit: five hundred and eight square miles. This statement the statute made conclusive evidence to the board of that fact. That the legislature had the power to make the facts contained in this affidavit, under the circumstances, conclusive evidence, we think cannot be successfully controverted. The commissioners , as we have seen, in ordering the election, were in the discharge of a ministerial duty in a matter or subject over which the legislature had full power and control. The proceeding was not an action involving any personal or individual interest or rights which in any way would be impaired or precluded by reason of certain facts being made conclusive evidence. The primary and sole purpose of the proceeding instituted by the filing of the petition before the board was to secure the holding of an election to enable the voters of the county to determine for themselves the question of removal of their county seat. ' It was right and proper and fully within the power of the legislature to adopt, as it did, some means or standard which would be conclusive evidence of the required area of the county, and thereby, without further inquiry upon that question, authorize the board to order the special election.
In is finally urged that the evidence given in the-circuit court is not sufficient to establish the area of Jackson county, and that the court erred in permitting Mr. Bingham to testify what the area of the county was as shown by a copy of the record on file in the office of the Auditor of State. Courts are required to, and do take judicial notice of the area of an established county, and also of its limits and boundaries. Board, etc., v. Spitler, 13 Ind. 235; Mode v. Beasley, 143 Ind. 324; Buckinghouse v. Greeg, 19 Ind. 401; Mossman v. Forrest, 27 Ind. 233; Turbeville v. State, 42 Ind. 490; Bannister v. Ditching Ass’n, 52 Ind. 183; Murphy v. Hendricks, 57 Ind. 595; Dawson v. James, 64 Ind 166; Williams v. State, 64 Ind. 555; Burton v. Ferguson, 69 Ind. 489; Peck v. Sims, 120 Ind. 348; Hays v. State, 8 Ind. 425; Glenn v. Porter, 49 Ind. 500; Carr v. McCampbell, 61 Ind. 97; State v. Gramelspacher, 126 Ind. 402.
The lower court judicially knew, and so does this court, that Jackson county contains more than five hundred square miles; hence no available error can be predicated upon the testimony of Mr. Bingham upon this question, nor was it incumbent upon the appellees to prove that the number of square miles in Jackson county was in excess of five hundred, for of this fact the court had judicial knowledge.
We have considered all of the material questions involved in this appeal, and are compelled to sustain the statute in dispute in all of its essential features, and the judgment of the lower court is affirmed.