121 Ind. 239 | Ind. | 1889
— The appellant petitioned the board of commissioners to levy an additional tax to pay a subscription which the voters of Shauswick township had made to aid the Bedford, Springville, Owensberg and Bloomfield Eail
It is probably true, as appellee’s counsel contend, that the petition is not as definite and certain as the rules of pleading require, but the usual remedy for such a defect is by motion. It is only where the pleading is so indefinite and uncertain as to entirely fail to state a cause of action that a demurrer will lie. We must, therefore, determine whether there are
The remedy adopted is not an inappropriate one. A taxpayer may petition the board of commissioners to order the necessary assessment, and need not, although he may do so, if he chooses, invoke judicial assistance through a different remedy. He has, however, as is often the case, an election of remedies. Gavin v. Board, etc., 81 Ind. 480; Board, etc., v. Karp, 90 Ind. 236; Board, etc., v. Montgomery, 106 Ind. 517; Board, etc., v. Barnett, 106 Ind. 599.
The right of a taxpayer to compel an additional levy sufficient to pay the amount voted to the railroad company has been asserted in many of our decisions, and must be regarded as settled. Board, etc., v. Montgomery, supra; Gavin v. Board, etc., supra; Board, etc., v. State, 86 Ind. 8.
There is no substantial merit in the point that the petition does not show that the levies made were insufficient to pay the subscription, for that fact does appear. The position that the failure to state the value of the taxable property in Shauswick township makes the petition bad, can not be maintained, for it appears, as a substantive fact,that the assessment did not produce the requisite amount.
It is true that two per centum of the taxable value of the property is all that can be levied in any one period of two years; the petition, however, does not ask that more be levied within that period. “ But,” as said in Miles v. Ray, 100 Ind. 166, “when an appropriation not exceeding two percent, has been’ lawfully made, it becomes a binding obligation upon the township, from which it is not discharged by a subsequent destruction or shrinkage in value of some of its taxable property. This construction secures to the company ultimately the full value of its appropriation, and at the same time protects the taxpayers from a levy of more than two per cent, in any period of two years.”
We have discussed and disposed of all the objections urged against the petition, and we find none of them valid. We have not examined any other questions than those argued, and to them we strictly confine this decision. The points mentioned are the only ones which are in judgment, and beyond them our decision does not extend. Our conclusion is-that the petition is sufficient to require an answer.
Judgment reversed.