No. 15,896 | Ind. | Dec 22, 1892
This was an action by the appellant, in the Hendricks Circuit Court, against the appellee, to enjoin it from levying a tax to pay the bonds issued by the county in payment for a toll road purchased under the provisions of an act of the General Assembly, approved March 8, 1889; Acts of 1889, p. 276.
The court sustained a demurrer to the complaint, and the appellant excepted. This ruling is assigned as error. So much of the complaint as is necessary to present the questions involved in the case is substantially as follows: Upon a proper petition and legal notice, the qualified voters of Marion and Center townships of Hendricks county voted upon the question as to whether the board of commissioners of the county should purchase so much of what was known as the Danville and New Winchester gravel road as was situate in these townships, and convert the
It is alleged that the act of the General Assembly above referred to is unconstitutional, being in conflict with section 1, article 10, of the constitution of the State, the rate of taxation as fixed by this act not being uniform and equal.
¥e are of the opinion that the question of the constitutionality of this statute is not presented in such a manner as to require a decision upon the point discussed. Out of the reluctance of the courts to pass upon the question of the constitutionality of a statute, has grown the well known rule that such a question will not be decided unless it is necessary to do so in order to determine the case upon its merits. Parker v. State, ex rel., 133 Ind. 178" court="Ind." date_filed="1892-12-17" href="https://app.midpage.ai/document/parker-v-state-ex-rel-powell-7051588?utm_source=webapp" opinion_id="7051588">133 Ind. 178.
In the case of Gilson v. Board, etc., 128 Ind. 65" court="Ind." date_filed="1891-04-10" href="https://app.midpage.ai/document/gilson-v-board-of-commissioners-7050938?utm_source=webapp" opinion_id="7050938">128 Ind. 65, it was determined that there was no difference, in principle, between taxation to construct a free gravel road and taxation to purchase a toll road already constructed, for the
In this case the appellant delayed bringing his suit until the toll road had been conveyed to the county and made free, and until the county had paid the purchase price, and the transaction had been fully completed and closed. He had received all the benefits contemplated by the law, and now seeks to avoid payment for such benefits, and asks the aid of a court of equity for that purpose.
One who receives a benefit under an unconstitutional law is estopped from denying its constitutionality. Ferguson v. Landram, 5 Bush, 230" court="Ky. Ct. App." date_filed="1868-06-04" href="https://app.midpage.ai/document/ferguson-v-landram-7130633?utm_source=webapp" opinion_id="7130633">5 Bush (Ky.), 230, 1 Bush, 548" court="Ky. Ct. App." date_filed="1866-05-31" href="https://app.midpage.ai/document/ferguson-v-landram-7378544?utm_source=webapp" opinion_id="7378544">1 Bush, 548; Travis v. Ward (Wash.), 25 P. 908" court="Wash." date_filed="1891-01-26" href="https://app.midpage.ai/document/travis-v-ward-4724161?utm_source=webapp" opinion_id="4724161">25 Pac. Rep. 908; Andrus v. Board, etc. (La.), 6 S. Rep. 603; Desmarais v. Board, etc., 42 La. Ann. 799; Dupré v. Board, etc., 42 La. Ann. 801, 8 S. Rep. 593; Daniels v. Tearney, 102 U.S. 415" court="SCOTUS" date_filed="1880-12-13" href="https://app.midpage.ai/document/daniels-v-tearney-90255?utm_source=webapp" opinion_id="90255">102 U. S. 415.
To present the question of the constitutionality of this act of the General Assembly, we think the action should have been commenced before the gravel road company had parted with its toll road, and before the county had paid for the same, or some excuse for the delay should be given.
Where a party with a knowledge of his rights, either by affirmative acts or by silence, under circumstances where he should, speak, encourages or permits others to pursue a course of conduct, or expend money, or alter their condition in contravention of the rights for which
It would be manifestly unjust to require Hendricks county to pay for the road, or the owners to lose the purchase price, while the appellant and others, for whose nse it was purchased, receive and enjoy all the benefits. "Without regard to the question as to whether the statute under consideration is valid or invalid, we think the complaint is bad.
Judgment affirmed.