Brocaw v. Board of Commissioners

73 Ind. 543, 1 Ind. L. Rep. 576

• Court: Indiana Supreme Court
• Decided: May 15, 1881
• Docket: No. 9040
• Status: Published

Opinion

Elliott, J.

— This was a complaint by the appellants, whoAvere citizens and taxpajmrs of Patoka township, Gibson county, to enjoin the collection of a tax which had been levied for the benefit of the Louisville, Neiv Albany and St. Louis Railroad Company. A demurrer Avas sustained to the first paragraph of the complaint. The demurrers of the appellees, the board of commissioners, and of Montgomery, the auditor, Avere sustained to the second paragraph. The demurrers of the other appellees were overruled. ■ Answer Avas filed by the appellees AAhose demurrers Avere overruled,. and to it the demurrer of appellants was overruled.

The important and controlling questions are those presented by the assignment of error based 'on the ruling sustaining the demurrer to the first paragraph of the complaint, and those questions will first receive consideration.

The complaint is very lengthy, and it would greatly prolong this opinion to give even an outline of its allegations. No questions of pleading are involved ; the case turns upon the correctness of general principles which controlled and led to the opinion of the court below, and these questions can be more fully presented, and be better understood, by referring to the facts out of which the questions spring as each question is discussed, than by giving an introductory-summary of the matters pleaded.

Four general propositions are stated and discussed by the appellants. The first is substantially as follows: The act under which the Louisville, New Albany and St. Louis Railroad Company was organized, that of March 3d, 1865, did not authorize it to construct a railway east of Princeton, and hence the corporation had no authority to receive a donation for the purpose of constructing a road east of that town.

It is argued at much length that there could be no valid tax assessed for the purpose of aiding the railroad company to construct a road east of Princeton, for the reason that the organization of the corporation was such that its authority to build a road did not extend beyond the said town. The whole argument is based upon the proposition that the organization of the corporation.was such as restricted the line of its route to the point named. The question of the organization of the corporation and all matters incidentally connected Avith it Avero necessarily determined by the commissioners as jurisdictional. matter’s when they pronounced judgment upon the petition for the assessment of the tax, and can not now be collaterally inquired into. The case of The Board, etc., v. Hall, 70 Ind. 469, furnishes a conclusive ansAver to the argument of the appellants. The doctrine which applies to the point under immediate mention is there clearly and forcibly expressed. In addition to. the authorities there collected may be added Ryan v. Varga, 37 Iowa, 78; The Louisville, etc., R. R. Co. v. The State, 19 Am. R. Cas. 107 ; Porter v. Stout, ante, p. 3; Miller v. Porter, 71 Ind. 521; Faris v. Reynolds, 70 Ind. 359.

The second proposition is thus stated: “There having been collected, by taxation, from the taxpayers of said township, the sum of seventy-five thousand dollars, and appropriated to aid in the construction of said railroad through Patoka township, and that sum being equal to two per centum upon the amount of the taxable property of said township, on the tax duplicate of the preceding year, there can not now be legally collected an additional tax for the purpose of aiding in the construction of the same road through said township.”

In order to clearly apprehend the force and bearing of this proposition, it is necessary to briefly state the substance of the allegations of the complaint upon this point: Prior to June, 1869, a corporation, known as the Louisville, New Albany and St. Louis Air Line Railroad Company, had been organized. At the Juno session of the Board of Commissioners . of Gibson county, an order was made, upon the proper petition, for an election, to determine whether a donation of $50,000 should be made to said corporation, and a tax levied for that purpose ; the tax was voted, levied and collected. Afterward an additional donation of $25,000 was voted, tax levied and collected. The aggregate of $75,000 was equal to two per centum of value of taxable property of the said township. After this had been done, and after the corporation had constructed part of its road, a decree of foreclosure was entered upon a mortgage which said corporation had executed, sale made thereon, and conveyance'executed. The pur-chasers at such sale filed articles of association, under the act of March 3d, 1865, 1 R. S. 1876, p. 728, and organized as a corporation, under the name of The Louisville, New Albany and St. Louis Railway Company. In August, 1878, this corporation consolidated with the St. Louis and Mt. Carmel Railroad Company, a corporation organized under the laws of Illinois. The consolidated corporation retained the name of that organized under our statute. In April of the following year, a petition was presented to the, commissioners, asking that a donation of $60,000 be made to said railway company, and such proceedings were had as resulted in an election, a majority vote in favor of such donation, and the levy of a tax of one per centum. Collection of this tax is here resisted, as the proposition indicates, upon the ground that the prior levy of two per centum exhausted the power of the commissioners.

It is necessary that the statute controlling this matter should be set out, for it is very difficult to obtain a clear apprehension of the question without a full examination of its provisions. The act governing the case is that of May 12th, 1869, and the sections of the act which control the point under immediate discussion are sections 1 and 13, which are as follows :

“Section 1. That whenever a petition shall be presented to the board of commissioners of any county in this State, at any regular or special session thereof, signed by twenty-five freeholders of any township of such county, asking such township to make an appropriation of money to aid a railroad company, named in such petition, and then duly organized under the laws of this State, in constructing a railroad in or through such township, by taking stock in or donating money to such company to an amount specified in such petition, not exceeding, however, two per centum upon the amount of the taxable property of such township on the tax duplicate of the county delivered to the treasurer of the county for the preceding year, it shall be the duty of such board of commissioners, after being satisfied that such petition has been properly signed by the requisite number of freeholders of such township as aforesaid, to cause the same to be entered at full length upon their records.

“Section 13. No township shall be authorized by the provisions of this act to appropriate to railroad purposes, or to raise by taxation for such purpose, to exceed two per centum upon the taxables of such township, as said taxables shall appear upon the tax duplicate of the county, in any one period of two years.”

We agree with counsel for appellants, that the right to make appropriations is limited as to the amount rvhich may be assessed at one time or upon one petition. We regard this doctrine as settled, and rightly settled, by the case of The Columbus, etc., R. W. Co. v. The Board, etc., 65 Ind. 427. But settling the question as to the amount which ma}' be levied upon one petition does not dispose of the case. It by-no means follows that, because the amount of any one appropriation is limited to two per centum, other appropriations may not be made at other times and upon different petitions. Sections 1 and 13 must be construed together, and, when thus taken, Ave find in one the limit as to the amount, namely tAvo per centum, in the other the limit as to-the time Avithin Avhich such amount may be levied, namely, “Avithin any one period of tAvo years.” We must give the statute this construction, or we must hold that the last clause of section 13 is utterly meaningless. This Ave can not do, Avithout violating the familiar rule that every “sentence, clause and Avord of a statute shall be given effect, and be deemed to have some meaning.”

There is nothing in the act indicating that the poAver to make an appropriation is exhausted Avhen once exercised. Section 1 of the act fixes, as we have seen, the amount Avhich shall be assessed upon one petition, and section 18 provides that such assessments shall not be made oftencr than once in tAvo years, but there is nothing restricting the exercise except as to the amount named andto the period limited. In Empire v. Darlington, 101 U. S. 87, it Avas insisted that, whore such a power as that exercised by the commissioners in this case Avas once exercised, it was exhausted, but the court declared this doctrine “to be clearly untenable,” and! held that there might be continued exercises of the power,, provided the limit expressly designated by the statute Avasnot transcended.

It is argued, Avith much plausibility, by the appellees, that the corporation to which the last appropriation Avas voted) is not the same as that to Avhich the first appropriation was-made. There are cases Avhich go very far toward supporting the appellees. In ordinary cases there can be little question as to the correctness of the proposition, but, under the peculiar provisions of the act of 1865, and under the facts •of this case, there is some room for debate. It is not, however, necessary for us to decide that question, and we give no opinion upon it.

The third proposition stated by the appellants is : “The condition contained in the petition, upon which the tax in •question was voted, renders the petition and all proceedings thereon void.” One branch of the argument of appellants is, that the condition expressed is unwarranted by any statute of the State. The condition is thus stated in the petition : “If said company shall fully construct so much of their said railroad as lies between the town of Princeton, in said Patolca township, and the eastern boundary line of said’ Gibson count}", and a train of cars shall have passed over the •same, on or before the 1st day of January, 1883, then one-half of said appropriation, being’ thirty thousand dollars, shall be paid to said company as soon as the same is collected, and afterward, when said company shall fully construct their said railroad to the town of Huntingburg, in Dubois county, in the State of Indiana, and a train, of cars shall have passed over the line of said railroad from the town of Princeton, in said Patoka township, to said town of Huntingburg, then, and not otherwise, the residue of said •sum, being $30,000, shall, when collected according to law, be paid to said company.”

The case of Bittinger v. Bell, 65 Ind. 445, holds that the township may prescribe reasonable conditions, and make their subscriptions payable thereon. It was there said : “It seems to us that it may well be held, as we now hold, that the township may, in making its subscription and in the preliminary proceedings which enabled it to make the subscription, prescribe such reasonable conditions as are not in conflict with either the letter or the spirit of the law.” This doctrine is well sustained by authority. The People v. Dutcher, 56 Ill. 144 ; The People v. County of Tazewell, 22 Ill. 147 ; Port Clinton R. R. Co. v. Cleveland, etc., R. R. Co., 13 Ohio St. 544, 559 ; The State, ex rel., v. The County Court, etc., 51 Mo. 522 ; Faris v. Reynolds, 70 Ind. 359. The right to prescribe conditions being held to exist, the question remaining for investigation is whether the conditions prescribed in the petition in the present case were opposed to any law. If we are to regard the act of 1879 as in force, then the question as to the right to impose conditions is entirely free from difficulty, for that act broadly provides that the donation or appropi’iation may be made upon such terms and conditions as may be specified in the petition. • Acts 1879, p. 46. It is, hoivever, very earnestly insisted that section 1 of the act of 1879 is invalid. The argument upon this point is that “the . section is void for the reason that it pui’ports to amend section 1 of the act of May 12th, 1869, when that section had been already amended by the act of March 17th, 1875.” It is settled that a section of a statute which has been once amended can not be again amended. Blakemore v. Dolan, 50 Ind. 194. An act professing to amend a section of a statute which has already been superseded by amendment is, as declared in the case cited, “unconstitutional and void.” The act of 1879 does, by its title, profess to amend sections 1, 2, 3, 4, 8, 13 and 17 of the act of 1875, and does amend them by substituting amended sections for the original ones. The contention of appellees is not that the act of 1875 does not amend section 1 of the act of 1869, but that the act of 1879 amends the amendatory act of 1875, and does not profess to amend that of 1869. The title of the act of 1879 is as follows : “An act to amend the 1st and 14th sections of an act entitled ‘An act to authorize aid to the construction of railroads by coum ties and townships taking stock in and making donations to railroad companies,’ approved May 12th, 1869, and amended by an act entitled ‘An act to amend the 1st, 2nd, 3rd, 4th, 8th, 13th and 17th sections of an act entitled “An act to authorizc aid to the construction of railroads by counties and townships' taking stock in and making donations to railroad companies,’ ” approved March. 17th, 1875, and declaring an emergency.” Section 14 of the act of 1869 had never been amended, and this is probably why the title of the act of 1879 makes reference to that act, for it was certainly necessary to refer to that act in the title of the amending act, and we do not think any one could have been misled by the title of the latter act. Although the title of the act last mentioned is somewhat confused, yet we think it fairly indicates the particular acts and sections intended to be amended. Even if the matter were in doubt, it would be our duty to uphold the law, and declare that the Legislature had not violated the provisions of the constitution. We decide, therefore, that section 1 of the act of 1879 is constitutional and valid.

Another branch of appellants’ argument is that neither the petitioners nor the commissioners had any authority to prescribe terms or conditions in violation of the statute. To this general proposition we unhesitatingly yield assent. While conditions may be imposed, they must be such as the statute does not forbid either by express words or necessary implication. The general grant of power contained in section 1 can not be construed to confer authority to make terms or conditions which the statute does not authorize. It is contended that the petition and order violated the provisions of the statute, because they allow money to be used in constructing a part of the railroad lying outside of the limits of the township. To state the point in other words, the position of counsel is, that townships lyive no right to appropriate money to be used in building a road beyond the township limits, but that all such money must be used in the construction of that part of the road situate within the limits of the township. This position is not tenable. It is true that the road to which the appropriation is made must touch some part of the township (Alvis v. Whitney, 43 Ind. ), but tvc do not think that all the money must be expended in the township making the appropriation. In Petty v. Myers, 49 Ind. 1, it was said : “As at present advised, we are not inclined to the opinion that when aid is given by a county or township for the constniction of a railroad running through the same, the money must necessarily bo expended upon that part of the road lying in the county or township.” It is true that in the caso cited there was no decision upon this point, and that case is not to be regarded as doing more than indicating the views of the court. We think the intimation of that case, a correct expression of the law. There is nothing in the letter of the statute requiring the money to be expended within the township, and nothing in the spirit of the law evincing such a requirement. The object of the statute was to secure to the citizens of counties and townships the advantages of railways, not to secure the distribution of money within county or township limits. The intention of the Legislature was to enable the citizens of townships to aid in the building of lines of railways which would afford them means of transportation not simply within the township limits, but beyond to the market places and cities of the country. But we need not elaborate this point, for. there is nothing in the statute requiring that the money appropriated shall be expended within the limits of the township, and we have no right to interpolate such a provision even if avo had the inclination.

Townships have no right to vote aid to railways already constructed. The statute certainly confers no such authority, and none exists independently of the statute. While this is true, avg think it furnishes the appellants no assistance, for we do not understand that any appropriation was made to a company which had completed its road. On the contrary, we think it affirmatively appears that the road of the company, to Avhich Patolca township Aoted aid, AAas not completed, but was in progress of construction.

The fourth proposition of appellants is, “that the statutes providing for these appropriations by taxation are unconstitutional.” The question as to the constitutionality, of these statutes is not an open one ; it has been settled against appellants by repeated decisions of this court. If there were no other reasons requiring ns to uphold these statutes, we should feel compelled to sustain them upon the principle of stare decisis.

We come now to the questions arising upon the answer. The single objection urged against the answer is that it does not show that the railroad company had fully performed the ■ conditions imposed by the petition and order. Upon this point the complaint was as follows :

‘ ‘And plaintiffs further charge that said railway company did not, on or before the 1st day of January, 1880, fully construct so much of its said railway as lies between the town of Princeton, in said Patoka township, and said eastern boundary line of said county, but, on the contrary, said railroad on said day, and for a long time thereafter, was and remained wholly unfinished and incomplete in many particulars, among which the following: The cross-ties upon said road were too few in number and placed thereon too wide apart, and only so placed as to support the iron of said road temporarily. The iron rails upon said road had never been fully spiked to the cross-ties, but only one half of the necessary spikes for the full construction of said road were used thereon, on or prior to the said 1st day of January, 1880 ; that no part of said.railroad, on the close of said day, had ever boon ballasted ; that the grades and cuts and embankments of said road had never been completed ; that the embankments and excavations wore so incomplete, that it left many and unnecessarily heavy grades upon said road : that ihe bridges and culverts and trestle works upon said road remained uulevel, the same having never been levelled.”

The answer of the appellees to the allegations contained in the above extract from the complaint was as follows: “Said railroad company, relying upon said proceedings and desiring to comply with the terms of said petition and to become entitled to said aid, entered upon the construction of its railroad in and through said county, and so fully constructed its said railroad in said county, that, on the 1st day of December, 1879, the same was ready for running locomotives and trains of cars thereon; '* * * that

from said 1st day of December, 1879, continuously to the present time, the entire line of the railroad of said company lying within said county of Gibson, from the western to the eastern boundary thereof, has been so fully constructed that trains of cars have daily (Sundays excepted) run over the same; and said railway company has, during said time, in good faith, operated the same as a railroad, and held itself out to the public as a common carrier, and has carried the United States mails, and transacted the freight and passenger business of the county along the line of said railroad through said Gibson county to and from said town of Princeton.” It may be that this is not a full answer to the part of the complaint quoted, but it does, nevertheless, show a full performance of the conditions prescribed by the petition. In the part of the complaint quoted, the pleader charges the corporation with not having done what it was not bound to do, and of course the answer was not required to meet such a charge. The answer avers that the railway corporation did do all that the petition and order required it to do. The fault is not in the answer, .but in the complaint, for the latter assumes that the railway ■ company was bound to do more than the petition or order ■ required, and upon this erroneous assumption makes the charge which it is said the answer does not deny or avoid. The answer does show full performance of all that the railway company was bound to do, and is not bad merely because it fails to answer an assumption expressed in a con- ■ elusion of law stated by the pleader, and which is altogether' unsupported by the specific facts affirmatively pleaded in the complaint.

The meaning of the petition upon which the appropriation was based is, that the road shall be completed as therein. prescribed prior to receiving the money appropriated. It is not meant that the road shall be perfect in every respect, but that it shall be so far completed as that it may be properly and regularly used for the purpose of transporting freight and passengers. The language of the court in Freeman v. Matlock, 67 Ind. 99, is so strongly applicable here that wc adopt it, substantially : It was not necessary that the road should be perfect and finished in every particular, and its track well ballasted. But it seems to us that the road should have been so far completed on its located and established, line, that the cars might have been and were run over it with reasonable regularity.

Judgment affirmed.