110 Ind. 65 | Ind. | 1887
This was a suit by Marcus M. Towle, as trustee of North township, in the county of Lake, in this •State, against John Brown, as auditor, and William Krim'bill, as treasurer, of the same county, to restrain Brown from issuing his warrant in favor of Frederick Shoenaman, as trus
A temporary restraining order was granted, but at the final-hearing that order was dissolved, and final judgment was awarded against the plaintiff.
There was no controversy as to the facts upon which the plaintiff’s claim to the money in dispute rested.
It was shown at the hearing, that, after his June settlement with the board of commissioners, that is to say, on the 13th day of June, 1883, there remained in the hands of Krimbill, as county treasurer, the gross sum of $12,012.43 which would have been conceded as belonging to North township if no question had arisen concerning the same on account of a then recent division of such township; that on that day Brown, as auditor, drew a warrant on Krimbill, as treasurer, in favor of‘Towle, as trustee of his township, for the sum of $6,322.64, and, upon demand, refused to issue such a warrant for a larger sum'; that the amount so drawn for by said warrant was paid by Krimbill; that for the remainder of said gross sum of $12,012.43, Brown told Towle at the time-lie intended to draw a warrant upon Krimbill, in favor of Shoenaman, as trustee of the township of Calumet, as stated..
It was further shown that, at the March term, 1883, of the board of commissioners of the county, North township was-divided, and that, out of the territory struck off by a division line, with small parts taken from two other townships added, a new township was formed under the name of Calumet township; that Shoenaman had become trustee of such new township; that, on the second Monday in June, 1883 (which was after Krimbill had made his annual settlement with the county commissioners in June of that year), Brown, in his capacity as auditor, proceeded to apportion to the several townships of the county the gross amount of the civil township funds duo each according to the law, as he construed.
The contention on the part of Towle, the plaintiff below and the appellant here, is, that., in the absence of any statutory provision on the subject, North township was not deprived of any of its property rights by the organization of a new township out of a part of its territory, and that, consequently, it was entitled to the exclusive use and control of all the revenues derived from taxes assessed in its name, and under its authority, before such new township was organized.
In the absence of express legislation, or some constitutional provision on the subject, the general rule is, that on the division of a township, or other municipal corporation, into two separate townships, or corporations, each is entitled to hold in severalty the public property which falls within
But as to money, dioses in action, or other kindred property, in existence at the time of the division, the rule is not so well defined. In the absence of an express provision as to that class of property, the respective claims of the two corporations become a matter of equity jurisdiction, and must be adjusted upon equitable principles. 1 Dillon, supra, sections 173, 186, 189; Zartman v. State, ex rel., 109 Ind. 360; Mount Pleasant v. Beckwith, 100 U. S. 514.
In the case of Johnson v. Smith, 64 Ind. 275, it was held that, as applicable to the different classes of common school funds, equitable principles required that a newly incorporated town, formed within the boundaries of a school township, should be entitled to receive a proportionate share of such funds based upon the enumeration of school children residing within the respective limits of the two corporations, and the doctrine of that case has become an accepted rule of decision in this court. Applying the equitable principles thus recognized to the unexpended funds of a civil township, and to cases in which there are no debts to be provided for, as in this case, the obvious conclusion is that Calumet township was, when it became fully organized, entitled to receive a proportionate share of the various funds standing to the credit of North township, upon the basis adopted by Brown in making an apportionment of such funds between the two townships, and that, in consequence, the circuit court did not err in refusing to restrain the payment of the several amounts of such funds, so apportioned to Calumet township, to Shoenaman as its trustee.
The judgment is affirmed, with costs.
