174 Ind. 115 | Ind. | 1910
This was a proceeding under the gravel road law of 1905 (Acts 1905 p. 521) as amended in 1907, for the improvement of public highways by taxation.
A petition was filed by appellees, and notice thereof given of the time and place set for hearing. The board of commissioners dismissed the proceeding, and appellees appealed to the circuit court, where the matter was heard and remanded to the board of commissioners to proceed under the petition, which it did, to the point of ordering the improvement.
Appellant filed an affidavit of interest under §6021 Burns 1908, §5772 R. S. 1881, and appealed to the Wells Circuit Court. There he filed an answer of general denial, and a special answer setting up numerous grounds of alleged unconstitutionality of the highway act of 1905, supra. The cause was tried, special findings of fact made, and conclusions of law were stated, upon which judgment was rendered, ordering the construction of the road, and taxing the costs to appellant, from which judgment he appeals, assigning error upon the conclusions of law.
No presentation of the question of classification is here made which w^as not made and considered in the late eases decided by this court, and we see no reason to depart from the conclusions there reached. In this case, it is shown by the petition and findings that the entire length of the way is covered by a post-route, and it is urged that the improvement of rural routes is not a township matter, and it does not lie within the province of the legislature to place a tax upon townships to construct or repair post-roads. We concede that the improvement of post-roads is not a township matter,
We have lately had occasion, in the cases of Harmon v. Gephart, supra, and Strange v. Board, etc., supra, to note the grounds of proper classification as to mail routes, and the inherent reasons supporting such classification. There is as much reason in the conditions authorizing such improvements as there is in requiring a definite number of freeholders to sign a petition for opening or vacating an ordinary highway, and another definite -number in opening a highway on a county line; and yet these requirements have never been intimated to be in violation of the Constitution. So far is this a matter of purely legislative concern, that a board of commissioners in one county may construct gravel roads on county lines, and the adjoining township may be required to contribute ratably, on the ground that it is a state matter, which is by statute committed to boards of commissioners, an instrumentality of the State. State, ex rel., v. Board, etc., supra.
Control over streets is not taken from the municipalities. The improvement can be made only with their assent (§7721 Burns 1908, Acts 1905 p. 521, §72), which necessarily involves conti’ol as to the character of the improvement, and they are entitled to a share of the repair fund. §7759 Burns 1908, Acts 1907 p. 613, §2. As was pointed out in the case
Section 7719, supra, does not purport to be, and is not in fact, an amendment of section sixty-two or section sixty-three of the act, and the amendment of section sixty-three in nowise affected §7719, supra; besides they are readily enforceable together, and are to. be construed in pari materia. Shea v. City of Muncie (1897), 148 Ind. 14; Indiana Central Canal Co. v. State (1876), 53 Ind. 575; State v. Rackley (1829), 2 Blackf. 249; Lincoln School Tp. v. American School Furniture Co. (1903), 31 Ind. App. 405.
There is no error in the record, and the judgment is affirmed.