101 Ind. 29 | Ind. | 1885
On the verified complaint of the appellant’s relator, an alternative writ of mandate was issued in this cause, directed to the appellee as the auditor of Bartholomew county. The appellee demurred to the alternative writ upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the court; and the relator declining to amend or plead further, judgment was rendered against him for appellee’s costs.
The relator has appealed to this court and has assigned as error the decision of the circuit court in sustaining appellee’s demurrer to the alternative writ of mandate.
Thereafter, at its regular June session, 1883, said board of commissioners ordered that a tax of one per centum upon the taxable property of Columbus township for the year 1883, be levied for said year 1883, being the remaining one-half of said sum of $70,000 voted by said township to aid in the construction of said railroad.
That said board of commissioners, at their September session, 1883, ordered that their aforesaid order of March 3d, 1883, should be cancelled and rescinded, and that the tax referred to in said order should stand for collection as though said order had never been made, except that all acts and proceedings done under said order should be valid, and also that it was not intended by said order to vary or change the proceedings of the auditor and treasurer in suspending the collection of said tax until said road is permanently located and work done by said railroad company as required by law.
It was further shown that said railroad had been permanently located in said Columbus township long before the time when the auditor of the county placed the instalment of the tax levied for the year 1882 upon the tax duplicate of
It is shown that said auditor declared that he would not •enter upon the tax duplicate for “said year 1883 any part whatever of the tax so levied in aid of said railroad for the year 1882, and which had, as aforesaid, been withdrawn from collection, as a tax to be collected as other taxes upon said duplicate, but that he would enter the same upon said duplicate in a separate column as a tax, the collection of which had been suspended, and which was to be carried forward upon the duplicate without collection until its collection should be ordered by the board of commissioners of' said county.
It is further shown that said auditor has nearly completed said tax duplicate, and that while he has entered thereon, and extended as a tax to be collected in ordinary course, the one-half of said tax levied by the board of commissioners at their ■June session, 1883, and declares that he knows of no reason why the same should not be collected, he has placed the instalment'of the tax levied at the June session, 1882, in a -separate column, and stated upon the duplicate that it was a suspended tax, which was not now to be collected.
The mandate of the writ was that the auditor should place upon the tax duplicate for the year 1883 the entire amount of the instalment of said tax levied at the June session, 1882, and extend the same as against the taxpayers of said Columbus township as a tax to be collected from them by the treasurer of said county in ordinary course, and that in so doing he omit any and all statements that said instalment of tax had been suspended or was not to be collected, or that failing ,so to do he should show cause why the court should not award against him its peremptory writ of mandate.
The first question discussed by the relator’s counsel, in his brief of this cause, relates to the alleged invalidity of the order of the board of commissioners of Bartholomew county, made on the 3d day of March, 1883. This order authorized the county auditor and county treasurer to suspend the collection of the railroad aid tax, theretofore levied by the county board and then upon the tax duplicate for collection, until the railroad company had expended an amount of money in the actual construction of the railroad in Columbus township, as required by section 4069, R. S. 1881. It, is earnestly insisted by the relator’s counsel, that the section of the statute, invoked by the county board, did not authorize the board to make such an order, and did not authorize the auditor and treasurer of the county, with or without such an order of the board, to suspend the collection of the railroad aid tax theretofore levied and then on the tax duplicate for collection. In support of his position, the learned counsel has vigorously assailed such section of the statute, upon the ground that by its phraseology and grammatical construction, the section was not intended to apply to cases where stock might be taken, or donations might be made, by any township after the section took effect and became a law, on the 11th day of March, 1875. We do not find it necessary to consider and decide this point in the case now before us, and therefore we express no opinion in regard to it.
It is clear to- our minds that upon the facts stated in the alternative writ of mandate, admitted to be true as the case is now presented, the action and orders of the board of commissioners, in attempting to suspend the collection of the-
We are of opinion, therefore, that the court clearly erred', in sustaining the appellee’s demurrer to the alternative writ, of mandate.
The judgment is reversed with costs, and the cause is remanded with instructions to overrule the demurrer to the* alternative writ, and for further proceedings not inconsistent: with this opinion.