190 Ind. 347 | Ind. | 1921
— This was an action by a taxpayer to enjoin the board of commissioners and other officers of St. Joseph county from issuing and selling bonds for the improvement of a highway about six and one-half miles long, at an expense of $210,000, under the “County Unit Road Law”' (Acts 1919 p. 531) and from levying and collecting taxes to pay such bonds and interest. The complaint was in two paragraphs, to each of which the trial court sustained a demurrer, to which ruling the appellant excepted'.
These objections as enlarged upon in appellant’s brief were fully considered by this court in- a recent case, decided after this appeal was perfected, and upon the authority of the decision in that case we hold that the statute in question (Acts 1919 p. 531) is not unconstitutional for the reasons suggested. Forrey v. Board, etc. (1920), 189 Ind. 257, 126 N. E. 673.
The substance of the second paragraph of complaint is that the plaintiff is a resident taxpayer and voter of St. Joseph county, Indiana, and that the defendant board of commissioners, county auditor and county treasurer are the duly elected and acting officers of said county; that fifty freeholders and voters of said county petitioned for the improvement of a designated highway therein, under the provisions of the County Unit Road Law, supra, and notice was given and such proceedings were had as that the highway was established and ordered to be improved for the distance of about six and one-half miles according to certain plans and specifications adopted by the defendant board of commissioners, which called for the expenditure of more than $200,000 to pay for the construction of said road; that pursuant to said statute the defendant board of commissioners adopted an ordinance for the issuing of $210,000 of such bonds in denominations and payable as provided in said statute, and directing the auditor and treasurer of the county, respectively, to prepare and cause to be executed and sold such road bonds, “all in accordance with said Act of the General Assembly of the State of Indiana, hereinabove referred to.” But it alleges that the state board of tax commissioners of the State of Indiana has not approved the issuance of said bonds, nor any of them, and that the defendant board of commissioners
Except for a proviso that under certain circumstances the tax levying officers, being dissatisfied with the denial of their petition, may cause the question, whether or not the proposed bonds shall be issued, to be submitted to a vote of the legal voters of the taxing unit affected, which proviso is here omitted, the section of the statute referred to reads as follows: “Hereafter no municipal corporation shall issue any bond or other evidence of indebtedness without the approval of the state board of tax commissioners. Any such corporation, desiring to issue any such bond or other evidence of indebtedness, shall file its petition therefor in the office of the state board of tax commissioners, setting forth the facts showing the necessity for such issue. The petitioners shall give notice of the filing of such petition and hearing thereon, to the taxpayers of the taxing district to be affected by such issue, by publication for two weeks prior to such hearing in two leading newspapers of opposite political parties, published in such district, or in oiie such paper if only one be there published, or in case no newspaper is there published, then by posting such notice in three public places in such taxing district. On the hearing of such petition, if it appear that a necessity exists for the relief prayed for, the state board of tax commissioners shall approve the issuance of such bonds or other evidences of indebtedness either as prayed for, or with such modifications or upon such conditions as may be deemed just and proper. If, on such hearing, it shall appear that such relief ought not to be granted, the state board of tax commissioners shall so declare, and such bonds or other evidences of indebtedness shall not be issued. All such bonds or other evidences of indebtedness so issued under the order of such board shall be incontestable, except for fraud,
It follows that if the approval of the- state board of tax commissioners was essential to the validity of the proposed bonds under the statute in force at the time this action was commenced, the approval of the county council is necessary under the amended statute. But if §201, supra, of the tax law, as above set out, was invalid for the reasons urged by the appellant, the amended section providing for referring to the county council all proposed issues of municipal bonds and securities must also be void. Therefore the amendment of the statute has not reduced to a mere moot question the alleged unconstitutionality of the statute requiring the approval of a board of taxing officials before the issuing of bonds to pay for a highway improvement, and we address ourselves to that question.
It is urged that by reason of its later enactment the authority conferred upon the board of commissioners by the highway act, approved March 13, was not restricted by the general provisions in the tax law approved two days before. But the language of §201, supra, of the tax law is general, and expressly applies to all municipal corporations which shall thereafter issue any bonds or other evidences of indebtedness, and there is nothing in the highway act suggesting a purpose to repeal it or limit its effect. Both statutes were passed at the same session of the legislature, and were under consideration by the legislature at the same time, and so far as there is no necessary conflict between them they should be construed together as parts of the general law. State, ex rel. v. Ives (1906), 167 Ind. 13, 22, 78 N. E. 225.
But where there are hundreds of miles of highway in a county, and it is proposed to expend $30,000 per mile in improving six and one-half miles of it, not improbably many different roads six and one-half miles long could be chosen on any of which a pavement would be “of public utility.” And doubtless many other kinds of improvements would be “of public utility,” as well as the improved highway, if only the municipality had the money with which to make them. The relative “necessity” of expending $210,000 in improving this particular highway at this time would not necessarily depend solely upon the public utility of the improvement, if made. Which of the different possible improvements that would be of public utility shall have the preference, or whether any of them shall be undertaken at a given time, are not judicial questions, but are such questions as may be referred to a public board charged with duties in the assessment of property and levy of taxes. The fact that the state board of tax commissioners does not possess judicial powers is not a reason why it could not be empowered to decide that question. Boards having to do with the levying of taxes and the expenditure of money raised by taxation must always exercise a discretion as to the general purpose for which each tax should be levied and the amount to be levied for each of such purposes, and as to the nature and amount of each specific expenditure from any general fund. Such
Under the law as it was at the time this case was decided by the superior court, the defendants’ county officers were without authority to issue and sell county bonds for making the proposed improvement without first obtaining the approval of the state board of tax commissioners, and the court committed an error in sustaining the- demurrer to the second paragraph of appellant’s complaint.
The judgment is reversed, with costs, and the cause is remanded for further proceedings not inconsistent with this opinion.