38 Ind. 41 | Ind. | 1871
Suit in the name of the State, on the relation of Jackson township and many citizens of that township, against Arnold, as trustee of the township, and certain other persons, to whom, as trustee, he had let the contracts for erecting a graded school building for the township.
Answer by general denial, and by a special paragraph for the contractors. A demurrer was sustained to the special paragraph of the answer. Trial by jury, and verdict and judgment for the defendants. The object of the suit was to enjoin the defendants from further proceeding with the erection of the building. The citizens of Morgantown, in Jackson township, had taken certain steps toward the incorporation of that town, and the school-house was erecting, or to be erected, within the limits of the town, as specified in these proceedings.
The trustee was proceeding to erect the building at the expense and out of the moneys of the whole township. If the town was legally incorporated, it is conceded by counsel for appellees that the trustee could not thus use the money of the township, and had no legal right to erect the building; as in that case the town would itself be a legal corporation for school purposes, and by its proper officers would have the power and the right to manage its own school affairs in its own way. It is also conceded that if the town was so incorporated, the citizens of the township outside of the town would have a legal right to object to the use of the township funds to erect the house in the town. We think, after a careful examination of the case, that the question whether the town was or was not incorporated is the point on which the case must turn; for although the trustee is charged in the complaint with fraud in procuring his .election
Turning to the law for the incorporation of towns, 1 G. & H. 619, we find the steps indicated which must be taken for the incorporation of a town. There must be a survey and map made of the territory intended to be embraced within the limits of the town. There must be a census taken of the resident population of the territory. The survey, map, and census must be left at some convenient place within said territory for inspection by those interested for at least twenty
It appears that a survey and map were.made, and census taken, and notice given, and application made to the commissioners to authorize the incorporation of the town; that the commissioners made an order for a meeting of the voters in the prescribed limits; and that an election was accordingly held on the 25 th day of September, 1869, which resulted in a majority of the votes being cast in favor of incorporation. No report of this election was ever made to the board of commissioners, or any further steps taken toward organizing the corporation.
On the 3d day of November, 1869, Arnold purchased the ground on which to erect the school building. On the 24th day of January and on the 3d day of February, 1870, he let the contracts for the work. There was evidence tending to show that the idea of incorporating the town had been abandoned before any steps were taken by Arnold toward acquiring the ground or the erection of the school building.
Do these facts show that the town was ever legally a corporation? We think they do not. The town cannot be a corporation, in a proper sense, until its officers and its board of trustees shall have been elected, and a president of the board designated. All this seems to be contemplated by section 20, above quoted. As section 9 declares that if a majority of the voters shall vote “yes,” such territory shall
The relators, other than Jackson township, moved the court to tax and adjudge the costs against the township exclusively ; which motion was overruled, and they excepted.
It was right to overrule this motion. As no authority appears to any one to use the name of the township as a relator, it might be a question, were the point before us, whether the relators, other than the township, should not have been taxed with all the costs. It can hardly be allowable for a citizen, or any number of the citizens of a township, unofficially, to embark the township in litigation at their own pleasure, and at the expense of the township treasury.
The judgment is affirmed, with costs.