86 Ind. 8 | Ind. | 1882
Lead Opinion
This was a proceeding by the State, on the relation of William W. Hamilton, against the board of commissioners of the county of Decatur, for a mandate to compel the levying of certain taxes charged to have been voted for the construction of a railroad. R. S. 1881, section 1167,. et seq.
The complaint upon which the proceeding was based stated,, that, on the 19th day of July, 1879, a petition was presented to the said board of commissioners, purporting to be signed by twentj^-five freeholders of Washington township, in said county of Decatur, asking that such township be required to aid in the construction of the Vernon, Greensburgh and Rush-ville railroad by an appropriation of $75,000, to be invested ’ in the stock of the company organized to construct said railroad ; that thereupon said board ordered an election to be held in said township of Washington, on the 25th day of August, 1879, which election was held accordingly; that the result of
The board waived the issuing of the, writ against it, and, voluntarily appearing to the action, demurred to the complaint for the alleged insufficiency of the facts relied upon as a cause of action. The demurrer was, however, overruled, and, the
The only question we are required to decide is, was the ■complaint sufficient upon demurrer to entitle the relator to a writ of mandate against the commissioners ?
The first objection made to the complaint, in its natural order, is, that a writ of mandate is not the appropriate remedy in the class of cases to which this belongs; that the levying •of taxes in a case like the one now presented involves the exercise of a discretion quasi-judicial in its character, and of a kind which the courts can not control by the issuance of such a writ to the tribunal possessing the necessary power to levy the required taxes. The authorities do not, however, sustain the position which the appellant thus seeks to maintain.
The code of 1881 provides that “Writs of mandate may be issued to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, or a duty resulting from an office, trust, or station.” B. S. 1881, sec. 1168.
This provision is a simple re-enactment of a precisely similar section of the code of 1852, and confers upon the courts of this State all the powers pertaining to writs of mandate which have usually been exercised by courts in other jurisdictions in the issuing and enforcement of writs of mandamus.
High, in his work on Extraordinary Legal Remedies, after referring to the power of the courts to require the performance of certain duties by municipal bodies, at section 382, says: “We come next to a consideration of the principles upon which the taxing power of municipal corporations may be set in motion, to meet their obligations incurred by municipal subscriptions in aid of railway and other kindred enterprises of a quasi-public nature. And it is to be premised that where municipal officers have, by authority of law, pledged the faith of the municipality in aid of such enterprises,
The conclusions thus reached by this author rest upon, and are well supported by, many well considered and leading cases, and, in principle, fully sustain the authority of the courts to issue and enforce writs of mandate in cases like throne before us. Huntington v. Smith, 25 Ind. 486; Ex Parte Loy, 59 Ind. 235; Jessup v. Carey, 61 Ind. 584; Mayor, etc., of Kokomo v. State, ex rel., 57 Ind. 152; Potts v. State, ex rel., 75 Ind. 336; Commonwealth v. City of Pittsburgh, 34 Pa. St. 496; Flagg v. City of Palmyra, 33 Mo. 440; People v. Mead, 24 N. Y. 114;
The authorities are somewhat conflicting as to who may be a relator in a case like this, but the decided weight of authority is to the effect that where the question is one of public concern, and the object of the mandate is to procure the enforcement of a public duty, the relator need not show that he has any'legal or special interest in the result sought to be accomplished. In such a case it is only necessary that the relator shall be a citizen, and as such interested in the execution
The next and only remaining objection to the complaint is, that, as the levies of taxes for the years 1880 and 1881 amounted to the aggregate sum of two per cent, on the taxable property of the townships of Washington and Clinton, respectively, the power of the board of commissioners to levy taxes to pay the appropriations voted by those townships is exhausted, and that, as the deficiencies in such levies of taxes to pay those appropriations have resulted from shrinkage in the value of the taxable property of the respective townships, a contingency has arisen for which no adequate provision has been made by law, and, consequently, for which no legal remedy has been provided.
By the act of May 12th, 1869, concerning the construction of railroads, as amended by the act of March 8th, 1879, and which is still in force, the several townships of the State were, by certain proceedings upon petition before the boards of commissioners of their respective counties, and by a majority vote of their qualified voters, authorized to take stock in, or to make donations to, railroad companies, to aid in the construction of their roads by appropriating a specified sum for the purpose intended, “ not exceeding, however, two per centum upon the amount of the taxable property of such township cu the tax duplicate of the county delivered to the treasurer of the county for the preceding year.” 1 R. S. 1876, p. 736; R. S. 1881, see. 4045 et seq.; Acts 1879, p. 46. Section 12 of that act declares that “If a majority of the votes cast shall be in favor of such railroad appropriation, the board of county commissioners, at their ensuing regular June session, shall grant the prayer of said petition, and shall levy a special tax
Section 13 of the same act further declares that “No township shall be authorized by the provisions of this act to appropriate to railroad purposes, or to raise by taxation for such purpose, to exceed two per centum upon the taxables of such township, as said taxables shall appear upon the tax duplicate of the county, in any one period of two years.”
These sections, when taken in connection with other sections of the same act, and particularly with the 1st section, must be construed as meaning that not more than two per' centum of the taxable property of a township, as estimated by the tax duplicate of the preceding year, can be appropriated at any one time to aid in the construction of a railroad; nor can more than two per cent, of such taxable property be levied upon the property of the township within a period of two years; but that when an appropriation of not exceeding two per centum of the value of the taxable property of the preceding year has been lawfully made, such an appropriation becomes a binding obligation upon the township, from which it is not discharged by any subsequent shrinkage in the value, or the destruction of any part, of its taxable .property.
Where an appropriation is once made, the only limitation upon the taxing power of the board of commissioners to meet and to pay it is, that not more than two per centum of the assessed value of the taxable property of the township shall be levied in any one period of two years.
This was the construction practically given to that act in the cases of Brocaw v. Board of Commissioners, etc., 73 Ind.
We have only examined the complaint with reference to the objections made to it, and, considered with reference to those objections, it appears to us to have been sufficient upon demurrer.
The judgment is affirmed, with costs.
Howk, J., doubts.
Dissenting Opinion
Dissenting Opinion.
The principal case shows that the special power given by law to levy taxes for the payment of the appropriation was exercised and ^exhausted in the manner prescribed by the statute. There is, therefore, no authority for a further levy under the statute. If the unpaid part of the appropriation is a legal obligation against the township, it is one in favor of the railroad company to which the aid was voted, and must be enforced by it in such modes as are known to the practice. Conceding the obligation to be such, I am clear that the relator had no right to bring any action for its enforcement — certainly not this action, which seeks a special levy of a tax for which there is no statutory authority. See City of Connersville v. Connersville Hydraulic Co., post, p. 235. If an enforceable obligation, the railroad company might have sued upon it, and have obtained an ordinary judgment for its collection. The county commissioners have no more power to levy a special tax for its payment than for the discharge of' any other legal or equitable liability of the township to pay money. The township may have money on hand sufficient to pay the demand, and may be ready and willing to pay it, especially when once the proper court shall have declared it bound to do so. No refusal to pay is alleged, and consequently no reason is shown for seeking an extraordinary remedy; certainly not the one sought and awarded in this instance.
But this court, as well as the Supreme Court of Kansas, has decided, and Mr. High, at section 390 of his work, cited supra, recognizes the soundness of the distinction, that the mere vote of the electors of a county or township, authorizing the donation or subscription, does not establish a contract relation between the municipal corporation and the railway company. In Board, etc., v. Louisville, etc., R. W. Co., supra, this court said that “All the acts of the commissioners and the voters of the county, in taking steps to raise the money, are between themselves, one the principal and the other the' agent; there is no contract with the company, nor had she any
The theory of these decisions in this respect, as substantially expressed in the Kansas ease, is, that the people of a county or township can not, in their primary capacity, enter into contract relations binding upon the municipality, but must act through, their duly constituted agents or officers. The agent, under our statute, is the proper county board; and while in this instance it is shown that the petition and vote were for sums to be invested in the stock of the proposed railroad company, it is not alleged that the board of county commissioners had made, for the townships concerned, a subscription to the stock of the company in any sum whatever. There was, therefore, no contract, or legal liability, which the company, in its own behalf, could enforce.
The principal opinion, as it seems to me, involves a departure, which ought not to be taken, from soundly decided cases.