101 Ind. 167 | Ind. | 1885
This action was brought by the appellant to enjoin the collection of certain taxes levied upon and assessed against his lands by the appellee, The Board of Commissioners of Wells County, for the construction of a gravel x’oad, and which the appellee John P. Deam,as county treasurer, was demanding, and threatening to collect.
Separate demixrrers by the appellees, severally, to the complaint, on the ground that the same did not state facts sufficient to constitute a cause of action, were sustained by the court, and the appellant refusing to amend his complaint, final judgment, on demurrer, was rendered against him, from which he has appealed to this court, and assigns as errors that the ■court below erred in sustaining said demurrers.
The complaint averx’ed, in substance, that the appellant then was, and for more than ten years past had been, the owner of certain real estate therein described; that said board of commissioners had attempted to levy a special tax upon said real estate to aid in the construction of a gravel road designated “ The Bluffton and Rockford Gravel Road,” and had caused the auditor of said county to enter upon the tax duplicate provided for the purpose, against said real estate, a
The question presented for our consideration, by the ruling of the court below on the demurrer to the complaint, is, Were the proceedings of the board of commissioners, recited in the complaint, illegal and void? The case of Columbus, etc., R. W. Co. v. Board, etc., 65 Ind. 427, is directly in point and decisive of the question. It was an action to enjoin the collection of a tax levied by the board of commissioners of Grant county, pursuant to an order of the board made at a special session thereof not legally convened, granting the prayer of a petition for an election by the voters of a towuship upon a proposed appropriation to aid in the construction of a railroad. The complaint, in that case, averred, among other facts, that “ the board of commissioners of Grant county were not in legal session on the 15th day of April, 1874, when the petition was presented, asking that Mill township might make an appropriation to aid said Cincinnati, AVabash and Michigan Railroad Company in the construction of its railroad through said township, and when the order was made that the polls be opened for the votes of said township
A demurrer was sustained to the complaint, and final judgment, 6n demurrer, was rendered against the plaintiff, from which it appealed to this court. It was' there said by this court, per Howie, C. J., in considering the sufficiency, on demurrer, of the averments in the complaint above set forth: “ It seems to us that the appellant’s complaint in this case stated facts sufficient to show a present cause of action, when the suit was commenced. If the facts stated in the complaint were true, and as they were well pleaded the appellees’ demurrers. admitted their truth, the taxes levied and assessed by the board of commissioners of Grant county, upon the appellant’s property in Mill township, in said county, to aid the Cincinnati, Wabash and Michigan Eailroad Company in the construction of its railroad, were clearly illegal, invalid and void. The proceedings, which led to the levy and assessment'of the taxes sought to be enjoined, were evidently intended to be had and held under and pursuant to the provisions of the act of May 12th, 1869, authorizing counties and townships to aid in the construction of railroads. It was indispensably necessary, we think, to the legality of those taxes, that the proceedings in question, in their inception and in every ma
It will be observed that the averments of the complaint in the case cited, and in the one under consideration, so far as they related to the invalidity of the orders of the board of commissioners in each ease, were substantially alike. Believing, as we do, that the law was properly enunciated in the case cited, and adhering to that decision, as a correct exposition of the law, we must hold, in this case, that the court below erred in sustaining the demurrers to the complaint.
The only difference between the 'two complaints is, that in the one under consideration it was averred that the board of commissioners asserted the right to make the order in question, because the statute authorizes the board to hold sessions ■on the first Monday after the second Tuesday in October, to receive reports from the school trustees of the receipts and ■expenditures of the school revenue, and that said order was made while the board was then in session. By an examination of the statute authorizing the holding of such sessions of the board of commissioners, R. S. 1881, section 4441, it will be seen that such sessions are to be held for the sole purpose of receiving from the school trustees the reports therein mentioned and taking action thereon. The boai’d has no power, at such sessions, to transact any other busi
The court erred in sustaining the demurrers to the complaint, and for the error so committed the judgment should be reversed.
Pee Ctjeiam. — The judgment of the court below is reversed at the costs of the appellees, and the cause is remanded with instructions to the court to overrule the demurrers to' the complaint, and for further proceedings in accordance with this opinion.