49 Ind. 62 | Ind. | 1874
This was an action by the appellants against the appellees, to enjoin the collection of certain taxes assessed by the authority of the town. The plaintiffs arc owners of property in the town, on which the tax is charged. The grounds ■of objection to the tax are, that the trustees who made the levy were not legally elected, and their election was not legally ■certified to the clerk of the circuit court. The town was divided into four wards or districts. A trustee was elected for each district, but they were elected by districts at a separate poll, and not at one poll by a vote of the whole town. The members of the preceding board of trustees, or a majority of them, did not act as inspectors of the election, but, as wc infer, persons appointed by them in each district acted as such inspectors. The persons who acted as inspectors in the several districts united in making the certificate of election, which was filed in the office of the clerk of the circuit court. The certificate states the number of votes received by each candidate, ;and gives the names of those who were elected. We see no
Counsel for the appellees docs not attempt to sustain the regularity and validity of the election. We think this could not be done. The election was undoubtedly illegal. While the law provides for the election of a trustee in each district in the town, it clearly contemplated that they shall be elected by a vote of the whole town, and that only one poll, or place ■of voting, shall be allowed. 1 G. & H. 621,622, secs. 10 and 15. It is also required, by the statute, that the preceding board of trustees, or a majority of them, shall act as the inspectors. 1 G. & II. 622, sec. 12. It is contemplated by the statute that the certificate to be filed with the clerk of the circuit court, according to sec. 16 of the act, shall be signed by those of the preceding trustees who may be present at the election and act ■as inspectors.
There is but a single question in the case, and that is, whether those departures from the statute, in holding and certifying the election, render the tax levied by the trustees illegal and void, so that the collection thereof should be enjoined. It is insisted by counsel for the appellees that the trustees who levied the tax were trustees de facto, and that the legality of their election and the validity of the tax cannot be questioned in this way.
There are certain matters material to the validity of the tax that are not questioned, and may, therefore, be taken as conceded. Among these are the following:
1. That the board of trustees, if legally constituted, would have the power to levy the tax.
2. That the property of the plaintiffs was liable to be taxed.
3. That the persons claiming to have been elected trustees ■each resided in his proper district, and possessed the other requisite legal qualifications for the office.
4. That the necessary forms were complied with in assessing the property of the plaintiffs, levying the tax, placing it. on the duplicate, etc.
At this point in the preparation of this opinion, an act was passed by the legislature and took effect, which, we think, cures the irregularities in the election of the trustees, and in the levy of the taxes in question. Act approved March 9th, 1875, Acts Reg. Ses. 1875, p. 153.
The judgment is affirmed, with costs.
