191 Ind. 609 | Ind. | 1922
Appellant commenced this action before a justice of the peace to recover from appellee the sum of $3 alleged to be due under the provisions of a town ordinance commanding that each able-bodied man between the ages of twenty-one and fifty years living in the town and not specially exempted, should work two days upon the streets in May or June of each year, under the direction of the town marshal, or pay $1.50
But since the action originated before a justice of the peace and the amount in controversy, exclusive of interest and costs, does not exceed $50, other questions discussed by counsel, arising upon the paragraph of complaint that was not based on the ordinance, will not be considered. §1389 Burns 1914, Acts 1903 p. 280, §6.
The statute .from which the above quotation was made was enacted at the same session ■ of the legislature as “An act concerning highways” which provided for the election of road supervisors in townships, who “shall call out all able bodied male persons, except insane, idiotic, deaf and dumb, and blind persons, who are over the age of twenty-one years, and under fifty years of age, and not exempt from such labor, during not less than two nor more than four days of each year (and) * * * shall require such persons to work on the highways of such district eight hours each day,” etc. Acts 1905 p. 521, §95! '
Neither of these acts contained an emergency clause, and both took effect at' the same time, upon proclamation by the Governor that the laws were in force. The language last quoted was afterward re-enacted, as part of a statute which was in force when the ordinance in question was adopted. §7761 Bums 1914, Acts 1913 p. 862, §2. But a statute passed in 1919, which declared an emergency and took effect April 1, 1919, before appellee was given notice to work on the streets, expressly repealed all sections of the statute previously in force (§§7761-7770 Burns 1914, Acts 1913 p. 862, §§2 to 11, inclusive) which required men to work on the highways by way of paying taxes in townships. Acts 1919 p. 521.
Road supervisors had been abolished two years earlier (§4, Acts 1917 p. 602, §9589h Bums’ Supp. 1918), and •at the 1919 session all authority of township trustees over highways was taken away, “and all control of highways, bridges and culverts by township officers
It thus appears that at the time when appellee refused to work on the streets there was no law in force under which he could have been compelled to do so, if he had lived in á township, and none conferring powers or imposing duties upon township trustees and road supervisors “in reference to road labor tax.”
It follows that so far as the law relating to road labor tax in townships was adopted into the law governing towns it was repealed by the repeal of all laws on that subject.
“Every * * * town-shall have exclusive power by ordinance, to control and care for its streets, alleys and public places * * *” §8964 Burns 1914, Acts 1905 p. 409, §269.
“* *' * Wherever there is a grant- of authority or power conferred by this act, and no method is provided by this act or by any other general law * * * for the exercise of such authority or power, the * * * board of .trustees of any town may, by ordinance, provide such method.” §8965 Bums 1914, Acts 1905 p. 219, §270.
Appellant argues that exclusive control over its streets, with authority to provide a method for exercising such control, which is given‘to towns by the sections quoted, conferred power to enact and enforce the ordinance in question. But authority to control the streets does not include power to compel every male person between certain ages, who is not under disability, to labor for an equal length of time at repairing the streets, without receiving wages, regardless of. the amount or character of his taxable property. Control of the streets is a different matter from exercising control over the inhabitants of the town in the matter of where and when they shall work, and requiring them to labor without pay.
After the statutes requiring men who lived in townships outside of towns and cities to work on the roads had been repealed the town was without statutory authority to enforce this ordinance, and it was no longer
The judgment is affirmed.