36 Ind. App. 113 | Ind. Ct. App. | 1905
Lead Opinion
The judgment herein rests upon the second and fifth paragraphs of complaint. They are substantially identical, except that they relate to different transactions.
In the second paragraph it is averred that the appellant on the 10th day of July, 1900, promised to pay appellee on or before the 1st day of January, 1902, $3,500, out of the special school fund of said township, with interest at five and one-half per cent, payable semiannually, from the 12th day of July, 1900, until paid, and attorneys’ fees, a copy of said instrument being made an exhibit. It is further averred that said instrument was executed by appellant through its trustee to appellee for an actual loan of money by appellee to said trustee for said township, which loan of money by said appellee to appellant “was authorized by the advisory board of Lincoln township, Hendricks county, Indiana, and was borrowed for the purpose of erecting and equipping a school building in said township;” that said sum was actually loaned for the purpose mentioned; that said school building and its equipments were necessary and proper for keeping and carrying on the schools of said township; that the money so borrowed was used in the construction and equipment thereof and was necessary therefor; that said sum is due and unpaid. Wherefore, etc. The loan alleged in the fifth paragraph to have been made was evidenced by a note for $2,000, dated September 18, 1900, and due January 1, 1902. Separate demurrers for want of facts were addressed to each paragraph, overruled, exception reserved, and such action is assigned as error.
An answer in six paragraphs was filed. The first paragraph thereof was withdrawn, and the plaintiff's demurrers for want of facts were sustained to the remaining ones. The appellant refused to plead further, judgment
The substance of the second paragraph is that no necessity existed for the erection of a schoolhouse, the township being amply provided with schoolhouses and school facilities. That of the third paragraph is that the erection of the schoolhouse was illegal, in that the only action in relation thereto was taken at a special session of the township advisory board. In the fourth paragraph facts are averred which prior to the act of April 27, 1899 (Acts 1899, p. 150, §1, §8085a Burns 1901), would have made it necessary ■ for* the trustee to procure an order from the board of county commissioners authorizing him to contract the indebtedness alleged. Acts 1875, pi 162, §1, §8081 Burns 1901, §6006 R. S. 1881. In the fifth paragraph it is averred that no levy has ever been made to the credit of the special school fund of the defendant township for the payment of the debt sued for. In the sixth paragraph the facts relied upon in the preceding ones are combined.
Section two of said act provides that before the board of commissioners shall grant such order, the township trustee shall file in the auditor’s office of his county a petition setting forth certain facts, and showing that he has given notice of its pendency. The act of 1899, supra, creating an advisory board, and prescribing its duties, by section twelve of said act, expressly repeals all laws or parts of laws inconsistent therewith.
The power by said act conferred upon the advisory board is not consistent with the exercise by the board of county commissioners of the power vested in them by the act of 1875, supra. One prominent purpose which led to the act of 1899, supra, was, no doubt, to guard against the abuse of power by township officials. It was not designed to render the transaction of township business impossible —a result which might frequently occur if the act of 1875 were still effective. The later statute makes no provision by which the advisory board could invoke action upon the part of the board of county commissioners. It is not made the duty of the township trustee to file a petition in the auditor’s office, except upon his own initiative; and, if both acts are in force, the trustee holds the key to the situation, and may nullify the action of the advisory board by failing or refusing to petition the board of county commissioners.
The members of the board of county commissioners can never all be citizens of a single township, and in a majority of instances no two of. them are such. It is therefore
No error was committed in sustaining the demurrers to the answers, and the judgment is affirmed.
Rehearing
On Petition for Rehearing.