*1 Township et al. et Parker al. Seward School Rehearing 29,812. 1959. denied Filed June [No. September 1959.] *2 Widaman, Widaman, Bowser of Warsaw Plymouth, Wampler, appellants. for Stevens & Chipman, Plymouth, appellees. B. Albert Kennedy Warsaw, Rockhill, Vanderveer, Lee, & amici curiae. case J. This comes to us
Bobbitt, Appellate under Acts Court transfer *3 p. 800, being §4-215, 151, §1, Re ch. Burns’ 1946 Township placement. Parker School See: v. Seward opinion Appellate E. 2d for of the 154 N. Court. Trustee,
Appellants enjoin and filed the this suit to Township and Advisory of Board of Seward School County Township, Auditor of Seward and the Civil County, Indiana, proceeding from further Kosciusko remodeling pay and the of bonds to the cost of issuance asserting building township, improving a school in such exceeded the number that the number of remonstrators any petitioners, of so issued of and because bonds illegal and void. would be question and issue in the trial court at sole presented appeal only properly here on is: one peti- than there were there more remonstrators
Were tioners?. plaintiffs-appellants, the trial request of
At finding special pertinent of facts. Those made a court may summarized as follows: here be to the issues 23, 1955, petition April was filed with the (3) On Advisory praying Board Township Trustee an of Trustee authorize issue and the applied procuring on the purpose funds to “of existing remodelZing improving the school of and cost Burket, building incorporated in the Town located County, Indiana, and Township, Kosciusko Seward thereto, equipment and an addition construction residing age pupils school within to accomodate Township, . . .” such School . County Auditor was attached
A certificate certifying petition to the “such Forty-four (744) signed by Seven Hundred owners real estate in said School and Civil Town- taxable ships.” 23, 1955,
(4) April On written withdrawals Twenty-two Hundred were filed One signers (122) real estate who were owners of taxable township. in the meeting Thereafter, 28, 1955, special April on Advisory Township Board of the was called for considering sufficiency pe- purpose of therefrom,
tition detеrmine and withdrawals necessity indispensable emergency an whether providing purposes existed for the of funds for the petition. set in the forth meeting
(6, 9) April 28, theAt Board found the sufficient and to be *4 adopted accordingly. a resolution It also found that indispensable extraordinary necessity an and an emer- gency existed for the issuance of bonds Seward School Township provide Township, аnd Seward Civil to funds
5 requested in proposed as of the v?ork pay the cost to bonds, and issue such and determined to such accordingly. adopted resolutions to issue the of the determination bonds (10) Notice by statute, publi- provided the last given, as 12,1955. being May cation days publication
(16) after of the Within bonds, to issue such the determination notice against filed. the issuance thereof was remonstranсe County Auditor was attached A certificate signed certifying that such remonstrance was thereto Eighteen (718) Hundred owners taxable Seven during Township. Also, such real estate within the period seventy day (70) of taxable real owners Township filed written withdrawals estate within remonstrance. from the meeting
(17) special Advisory A Board was 9, 1955, held on June to consider remonstrance against filed the issuancе of the bonds. Finding importance
Because of the it is No. set out verbatim herein and as follows: meeting special “19. At said of June aforesaid, Advisory re- Board considered the monstrance the issuance of said and and aforesaid,
withdrawals from such found and in determined that addition to the Sev- enty (70) taxpayers who had filed withdrawals Eight found, from the remonstrance as hereinbefore (8) twice, others had such remonstrance and that Two Hundred names of tax- Two payers appeared signors [signers] of said re- appeared monstrance whose names had also on the Finding referred above which had been counted as in the action of granting Board in at its special meeting April 28, 1955, as set out in Finding 7, thereon as proceedings consequent and had found, hereinbefore that nonе of *5 (202) persons Hundred had ever filed said Two Two petition a withdrawal from or to withdraw their original petition from the names referred to in Finding 3; and it further found that after deduc- ting the therefrom, taxpayers signed the number who had original petition aforesaid the said withdrawals deducting and from the number of tax- payers appeared names on said whose remon- (202) strance the Two Hundred Two names of signеd original persons petition had who both having remonstrance ever and the drawn without with- plus Seventy (70) from the taxpayers names of from said who had filed withdrawals Eight plus (8) remonstrance, had names of who twice said remonstrance, of names on said remonstrance. greater remained a there number original petition, than on such And, thereupon, said found such Board remonstrance to be insuffiсient same, all and denied resolution of said passed adopted meeting.” Board at said accept foregoing record here Under we correctly facts as found. Gross Income Tax Div. Corp. (1953), Comb. 232 Ind. Surface E. 2d 50. N. plaintiffs-appellants
The trial court found defendants-appellees. and for the 1945, Appellees proceeded herein have under Acts 5, §1, 9, being p. §64-312, Replaсe- ch. Burns’ 1951 ment, 507, §1, being p. and Acts ch. §64- Replacement. Burns’ 1951 64-313, supra, provides
Section that no taxes shall principal levied to meet the be and interest of munic- ipal prior bonds unless to the issuance of such bonds petitions fifty or shall filed at least be (50) municipal owners of “in taxable real estate corporation desiring obligations praying to issue such the issuance” thereof. thirty providеs also Such section within days publication after of the notice of de- provided in such termination to issue the bonds section, may “by filed owners of remonstrances corporation municipal real estate in taxable such greater petitioners, number of in number than the municipal body whom the with the or officer with petitions filed, or were which *6 praying duly certified, is likewise and that verified obligation obligation issued, such no then such no shall be issued.” provides then if section that
prevails, petition no further for the issuance such obligations period of one shall be filed within year filing after the of the remonstrance. qualified exceeds remonstrators
If the number qualified petitioners, officials then the the number of Township (appellees) are without of Seward authority issuance prоceed lawful to with bonds; Wallace, Trustee v. or of such sale 54, 2d App. 59, E. Simpson 108 27 N. (1940), Ind. contrary to 130; trial is decision court law. not, or here whether
The determinative issue signers presented, under factual situation here petition attempted their later to withdraw who legally so, Two names could do whether petition (202) persons Hundred who Two legally therefrom, also did could but not withdraw sign the remonstrance. general persons “It is a rule in this state that
signing
right
their
to
have the
withdraw
created
names therefrom
tribunal
before
.by
and consider such
law to receive
(1870),
Hord v. Elliott
has acted thereon.
220;
City
(1873), 42
Ind.
Vincennes
33
Noble
v.
8
125;
Campbell (1887),
122,
Ind.
Black v.
112 Ind.
;
(1908),
719,
Arnold et al. Ind. N. E. 2d 858; McQuillin, Corp., p. Munic. Vol. §37.50, 184; Anno. 27 A. R. 2d L. 604-620. reaffirm this rule. We appear, which later opinion
For the reasons it is our “the determination to issue” the bonds is the to in the rule action referred above stated.
In Ralston Beall 171 Ind. E.N. required right determine this court was to withdraw from a gravel of a free construction road under a statute1 provided upon filing report which of a viewers, shall, opinion “the commissioners if their public utility requires it, upon enter the record an *7 improvеment made, order that the be . . .” It was there (at page might Ind.) held 722 of 171 that names any petition added to or withdrawn the at time finding, before the Board made after the find its but ing right had been made the no to withdraw names longer existed. Campbell
See also: Black et al. et al. v. 122, 13
Ind. N. E. 409. provisions The of the are statute with which we quoted here are similar concerned to those above from §5091, 1881, supra, upon filing R. S. in the a 1877, pp. 82, 84, §5091,
1. Acts
R. S. 1881.
proper body shall,
provided,
as
the
petition,
therein
necessity
therefor,
opinion
exists
in its
sufficient
if
requested
petition.
to
the
the
issue
bonds
determine
here,2
under
statute
the
us that
the
It
seems
finding
resolution,
petition
adoption
a
bonds,
determining
is as
to issue
sufficient and
finding
petition
upon the
as was the
an “action”
much
County
in Ralston Board of
Commissioners
719,
Beall, supra
Ind.
(1892), 171
In case the Board at 1955, meeting April 28, on found to be sufficient; emergency necessity an that both requested existed the issuance of the bonds as petition; in the and determined to issue the same. stated, For the reasons above could not their names from the herein after withdraw adoption (determining to issue of such resolution 28, bonds) April 1955. Board on upon no action had Since taken been Twenty-two April the One Hundred when township real estate in the owners taxable being §1, §64-313, p. Burns’ 2. Acts ch. *8 Replacement. petition, they filed their written withdrawal from legally withdraw, could and no error was committed by permitting them to so. do next
We consider the Two Hundred Two' petitioners who filed no withdrawal and whose names appeared pe- both on the remonstrance on tition on June when the was remonstrance by Advisory considered Board. question
This was answered court et al., supra Pullin al. (1954), v. Arnold et 234 Ind. page 16, 858, when, quoting at N. E. 2d from City Noble Vincennes 42 Ind. we said: “ party ‘When has who doing signs granting something or afterwards doing a remonstrance or granting petitioned for, he what has it would seem reasonable one should destrоy other, counteract and the effect of the if presented the remonstrance is before action has ” petition.’
been had in accordance with the already clear It is from what has said here been inabove that remonstrance in the at case bar not filed before action had been taken on petition. Hence, signing of the remonstrance (202) petitioners, these Two Hundred Two here, illegal under the circumstances and of no force effect, peti and their names must be counted as and not as tioners remonstrators. power here Board exercised its
determine that such bonds be issued and to order their meeting April 28, issuance at its 1955. The effect §64-313, supra, of a under sufficient suspend power is to to issue the for a filing period year of one оf such remon- §64-313, supra. strance. *9 meeting Advisory- purpose of the of the
The sole 1955, was to consider the suf- on June held Board ficiency remonstrance. seventy (70) filed with- who
Since its suf- remonstrance did so before from the drawals fiency Board considered was valid, 9, 1955, their withdrawal was on June properly excluded them when and the Board (1909), considering Lee the remonstrance. v. Shull 521; 309, 312, Maxwell 88 E. v. Ind. N. Sauntman 172 397; et 114, 124, (1900), Ind. 54 N. E. Sutherland 154 E. McKinney (1897), Ind. N. al. 1048. proper remonstrance
It to delete from the was also (202) persons who the names of the Two Hundred Two signed to effect had had failed but eight timely persons had therefrom. withdrawal Since signed properly twice, error the remonstrance was eight by deducting persons from an additional corrected appearing the total on the remonstrance. original signed appears
It persons. Forty-four (744) qualified Seven Hundred Deleting Twenty-two (122) therefrom the One Hundred timely withdrawals, who filed their written there Twenty-two (622) remained a Hundred total Six qualified petitioners names were affixed to whose April when it was found Advisory Board determined and the sufficient to issue the bonds. Hund- original contained remonstrance Seven signatures. Eighteen (718) Of this number
dred timely Seventy (70) had filed their remonstrators Deleting leaves a total these names withdrawal. Forty-eight must be from which Six-Hundred signers who Hundred Two deducted Two failed to effectuate their pe- withdrawal from the tition, eight (8) persons and the who had twice, leaving a net total of Four Thirty-eight (438) qualified Hundred remonstrators. apparent It qualified is thus there were more proper than there were remonstrators. Hence, the trial sustaining court did not err in finding Advisory Board, judgment and its contrary not to law.
Judgmеnt affirmed. Arterburn, Landis, JJ., Jackson and concur. Achor, J.,C. opinion. dissents with
Dissenting Opinion enjoin C. J. This is an action to the issuance Achor, by township a special under a statute. §64- 312(d) §64-313, and Repl. proceedings Burns’ 1951 The prescribed as by statute, (1) the are as the follows: action is petition initiated on of 50 or more owners property, taxable which shall laid the be before body bonds; body (2) authorized issue to such if said determine to issue purpose specified, such bonds for the day a 30 during given, notice shall be which remon- may body, strances filed with said if remon- and greater strances in number petitioners than the shall obligation be filed “then no such shall be issued.” Briefly gave controversy facts which rise to the petition in this case are signed as follows: 1. The by persons, 744 122 of whom withdrew from the petition before the was submitted to the appellee petitioners tribunal. This left a 622 total of on the at the time appel- it was submitted to Thereupon for appellees lees action. 2. entered a petitioned determination that the bonds issue as required publication notice ordered
13 During action. 3. filing to such of remonstrances prescribed for remonstrance a total of 718 period signed filеd remonstrance. a real estate owners of during names however, their these, withdrew 70 Of leaving 648 day period, a total of action, to the timely filed their who ap- petitioners. 4. It further compared with 622 as persons, had not withdrawn peared who remon- petition and the either, had both strance. question presented for our determina- specific referred to persons above
tiоn is whether petitioners remonstrators or counted should be they for either or considered should be or whether legal regard effect of to the purposes. is with It both upon proceedings I differ with names these majority opinion. ques- majority opinion, “The sole stated in the As only properly and the one in the trial court tion at issue re- appeal there more presented here on is: Were petitioners?” there monstrators than were prescribed dispute a number There is no that where necessary with to vest tribunal signing jurisdiction act, persons such after may therefrom their names not withdraw and consider receive the law to tribunal created *11 rule is nec- This acted thereon.1 such has petitioners should essary fact because deny number, decreasing the tribunal not, by their al- has jurisdiction perform which it the action 365, 363, App. E. N. E. (1920), 125 N. 72 Ind. 1. Current v. Current 245, 241, (1886), 779; 9 al. 108 Ind. Carr et al. v. Boone et 439, 473, 474, E. 44 N. 110; (1896), 145 Ind. Gerhardt State v. (1934), Harry Ind. 313; v. Pullin Ice 33 L. R. A. ex State rel. 1508; 65, 69, et al. Arnold E. L. R. 191 N. A. (1954), 858. 122 N. 2d et al. 234 Ind. E. ready However, position taken. it is ap- the pellees person signing that a the could not proposed remonstrate to the action unless he had first withdrawn from the and that such with- only any could made drawal “before action had been рetition.” my taken on the opinion It is position supported by is neither by reason or the re- ported decisions of this court.
Where, present in proceedings, as the the ultimate (the bonds) action issuance proposed by pe- as approved by tition and appellees by is statute ex- pressly depend upon made to majority the will numerically expressed as pe- tition for аnd proposed remonstrance action, reasonably then it seems to follow that appellee determining tribunal will the ma- jority must consider the of all names all they remonstrators appear to the action as at the time of such enumeration. taxpayer the name appears
Where of a both as a petitioner argued and as a remonstrator it could be with expression reason that the last of the will of taxpayers, expressed the remonstrance prevail, should since that instrument would ordi- narily express taxpayer’s final and more sea- judgment regarding soned proposed action. How- ever, long precedent established of this court seems to be that under such circumstances the effect of the petition and the merely to cоunter- act each other. In other words the name of the tax- payer petitioner will be considered as a and also as a remonstrator. early
In the City case of Noble et al. v. Vin cennes 42 Ind. this court stated rule as follows: *12 party petition a who has a “When something doing granting afterward
the of or grant- doing signs against the or a remonstrance for, ing reasonable petitioned seеm it would of what he has should the one counteract other, destroy remon- effect of the if the the had presented before action has been strance is (Page 130.) petition.” the in with accordance appellees Concerning this decisions of court the quoted rely upon from the above case the last clause had had in action and assert that because “been right petition” therefore the of accordance with petition or petitioner from the to either to withdraw a longer The case action no existed. remonstrate to the Vincennes, City supra, not does of Noble et al. v. of City position. In that case sustain this Vincennes taxpayers its authorized Council $100,000 Rail to and Cairo donation of the Vincennes notwithstanding that, Company. road The case holds donation, the fact that council had authorized petition and could withdraw both join do in the authorized the remonstrance binding upon nation until such time as some action city court In that had taken. case been stated: nothing “There be irrevocable would seem to (Page 130.) signing petition.
in . . . to the remonstrance in time counteract “Was our petition? In effect of opinion, think it was. ... We any time, been, at that bind- had not there upon ing action the council conclusive right be petition. amount intended to No any one, or which donated accrued in had favor of 131.) any (Page (Our one.” could enforced italics.) Furthermore, et al. in the recent case Pullin 2d Ind. 122 N. E. et Arnold al. citing City
this court the case of Noble et al. v. Vin cennes, supra, proceedings held that a ditсh where dependent upon final action was the number of remon *13 action, property sign strators to the owners who had ed join could withdraw therefrom and in the remonstrance proposed during action period provided remonstrance, though even posted bond had been appointed and viewers had been for the drain in petition. accordance with the
Since in
binding
this cаse
upon
no action
the town-
ship had
regard
been taken or could
taken
with
proposed
issuance of the
except
on the
basis of the
filed,
my opinion,
principles above stated and the decisions of
court
require
above cited
the will
all
expressed by
proposed
their
remonstrance to the
ac-
tion be considered.
Reported in
Note. —
King v. State of Indiana. 29,684. Rehearing [No. Filed June 1959. denied September 29, 1959.]