142 Ind. 460 | Ind. | 1894
Lead Opinion
The appellant, for himself and on behalf of the citizens and taxpayers of the city of Delphi, sned to enjoin the collection, as taxes for township purposes and to the use of Deer Creek township, the sum of seven cents on each one hundred dollars in value of the real and personal property within said city and owned by the appellant and such other taxpayers of said city.
Two questions are presented by the record and discussed by counsel;, the first challenging the authority of the township, for township purposes, to levy a tax upon the property within the limits of and subject to taxation by an incorporated city, and the second denying the sufficiency of the record of the county commissioners to disclose a concurrence by the board in such levy. Our conclusion renders it unnecessary to consider the manner of making the levy since we have no doubt of the absence of any authority to make a levy for such purposes upon such property.
The question does not depend upon the constitutional authority of the Legislature to subject the property of the minor political subdivision to taxation for the purposes of the major division, for the reason that the Legislature has not, so far as we have been able to learn, attempted by any existing legislation to exercise any such authority.
The township trustee is an officer chosen by the people whom he serves, and these comprehend not alone the people of the township outside the incorporated cities and towns, but also the citizens within such cities and towns. Outside the cities, his duties relate to the schools and the roads. Even these duties are so performed that when relating to the .schools he acts as the school trustee, and when relating to the highways and to some other township affairs he is deemed to act for the civil township,
There is no authority given to tax the people of a township, outside the city, for the support of interests within and relating alone to the city in its distinct corporate capacity, and it may, in like manner, be said that those interests which are peculiar to the citizens and the property outside such city must find support alone from those whose interests they are, namely, those of the township as distinguished from those of the city. In the absence of affirmative legislation commingling such interests, dividing such burdens and providing that a common officer shall protect and enforce them, we must hold that they are to be deemed separate and treated distinctly. This conclusion necessarily follows from the nature of our forms of local government. This conclusion does not, however, exclude the idea that there may be interests general and mutual as between the citizens and the property within the cities and within the civil township. In the support' and care of the poor within the civil township, including those within the cities, there are such interests, and there could certainly
The laws of this State have made the support of the poor a county system in the matter of levying and collecting the taxes for that purpose, and in the one respect of constituting the township trustee an overseer of the poor is such system a township system. The cities and towns, under our general laws, maintain no separate methods of caring for the poor, but for that purpose the trustee is the agent and officer for them in common with the citizens of the township outside of the cities. In this respect, at least, is the trustee the officer of the citizens of both the city and the township, outside of the city, and in this is found an answer to the argument that if not a representative of the city population, that population should and could have no voice in his election.
If we are correct in the conclusion that the urban and suburban population and property of a township may properly be the subjects of a common tax, and that such citizens are entitled to act in common in the election of an officer to perform a public duty in which both are interested alike, then it remains to inquire whether a tax for township purposes creates a fund in the expenditure of which there is any common or mutual interest or duty. The appellant earnestly maintains that- there is no such interest, while the appellee’s learned counsel insist that the trustee renders services which inure to the benefit of the inhabitants of the city; and that
It is not claimed ,by the appellee that the levy can be justified for the purpose of compensating the trustee for services as an inspector of a township election, and since no such election has been held since April, 1890, and by the act of March 2, 1893 (Acts 1893, p. 192), such elections will hereafter be held as a part of the general elections, no such claim could reasonably be made.-
Section 5995, R. S. 1881, directs a levy, for township purposes, upon the property of the township. In the same connection it is directed that such levy shall be made for road and other purposes. We have no doubt, in the absence of a common interest between the two municipal corporations, the city and the township, this statute should be construed to apply to the property of the township as distinguished from that within the limits of the independent municipality, the city.. The appellees’ learned counsel cite the case of Tilford, Aud., v. Douglass, Tr., 41 Ind. 580, as contrary to this view. That case involved the question of
By the act of March 6, 1889 (Elliott Supp., sections 1977 and 1978), the act of March 7, 1891 (Acts 1891, p. 349), and the act of March 4, 1893 (Acts 1893, p. 298), the salaries of township trustees in townships containing populations of from 25,000 to 100,000 were specially provided, and by the first two of said acts the rate of compensation of all township trustees, other than those whose townships contained such special populations, was provided.
By none of these acts is the question before us affected. If injustice may be done by the special acts mentioned, in the townships where such special salaries are provided, that is not a reason for departing from what we believe to be the true rule in the case before us. The responsibility for that injustice, if any, must rest with the Legislature, and is not for consideration by this court.
We conclude, therefore, that the levy in question was without authority of law, so far as it included property
The judgment of the circuit court is reversed, with instructions to grant the appellant’s motion for a new trial.
Rehearing
On Petition for Rehearing.
The appellee has presented an extended, earnest and able petition for a rehearing. With one or two exceptions the questions argued are those passed upon in the original opinion. It is insisted that we are in error in holding that the services of a trustee as overseer of' the poor are compensated from the county treasury and not from the township fund. It is claimed that the acts of March, 6, 1889, March Y, 1891, and March 4, 1893, supra, repeal section 32 of the act of March 31, 18Y9 (Acts 18Y9, p. 142), which provided that “The^>er diem of township trustees shall be as follows, to-wit: For each actual day’s service they shall he allowed, he paid out of the township fund, $2.00: Provided, That for all services as overseer of the poor, said township trustees shall he paid out of any funds in the county treasury not otherwise appropriated, on the order of the board of county commissioners.” The alleged repealing statutes each contained the provision “That each trustee of any township in this State shall receive for the time he is necessarily engaged in the discharge of his duties, the sum of two dollars per day, and this shall be full compensation for all services that they shall in any capacity and in any manner perform. ” By the same sections, salaries are provided, for trustees in townships having populations from seventy-five thousand to one hundred thousand. Laws in conflict with these
The law does not favor the repeal of statutes by implication, but requires clearly repugnant language to effect such repeal. Hunt v. Lake Shore, etc., R. W. Co., 112 Ind. 69 ; Chamberlain v. City of Evansville, 77 Ind. 542; Water Works Co. v. Burkhart, 41 Ind.
We conclude, therefore, that the salary of the trustee, acting as overseer of the poor, is payable from the county treasurer, and that it is not a charge against the township fund.
It is further insisted that the office expenses of the trustee, such as blanks, records, lights, fuel, office rent and attorney’s fees constitute an expenditure in which the urban and the suburban population of a township are interested in common, and that they constitute a charge against the township fund. Counsel have not advised us as to the authority under which a trustee may incur these various items of expense and charge them to the township fund. We know of no statutory provision authorizing the expense of office, fuel and lights, and conclude, therefore, that no authority exists. Board, etc., v. Axtell, 96 Ind. 384; State, ex rel., v. Mills, 142 Ind. 569.
If blanks and records are required they are chargeable to the fund in whose interest they are required to be kept, and.are not a charge against the united urban and suburban population unless required for the united purposes of such populations, and these we hold do not> exist. As to attorney’s fees, if the employment is authorized at all, and is on behalf of the roads, it would be a charge to the road fund, and if on behalf of the, schools, a charge against the school fund, etc. But without some joint interest existing between such populations, there could be no joint liability and no necessity for a joint fund. If, however, any or all of such expenditures are proper, they are such as to enable the trustee to assign them to the particular interest requiring them. Their existence does not prove that both populations must bear them jointly. ' It is suggested,
On the 6th day of March, 1891, a later act was approved (Acts' 1891, p. 199), sections 47 and '53 of which provided another and antagonistic method of taxation for such animals. The- latter act repealed the former by necessary implication, and the services of the trustee contemplated by the former acts, are not required to be performed.
It is further contended that the trustee is required to perform for such two populations, in common, the service of controlling the township library, and to this proposition are cited sections 4527 to 4533, R. S. 1881; 6018, et seq., R. S. 1894.
These sections are from the general school law of March 6, 1865, Acts 1865, p. 1. By section 132 of the .act, the libraries are denominated “township school libraries.” They were purchased, not by the townships, but by the State, and were distributed to the townships ■on the basis of school population. The trustees are required ‘ ‘ at the commencement of each school term, at each school house in their respective townships, to cause a notice to be posted up, stating where the library is kept, and inviting the free use of the hooks thereof by the persons of their respective townships, ” etc. Every implication from the provisions of 'the act is, that the legislature intended the library system to constitute a part -of the educational or common school system of the-State, and that the service to be performed by the trustee, in connection therewith, is in his capacity as school
To insist that, as to the gathering of the township fund, the urban population, though not sharing in the benefits should share its burdens, supplies equally the the argument for contending that the suburban population should aid in supporting the schools, and the streets and alleys of the cities. Such a contention, how