Towle v. State ex rel. Shoenaman

Niblack, J. The controversy in this case arose out of the division of a civil township. The board of commissioners o:' Lake county, in this State, at their March term, 1883, made an order which practically divided North township of that county into two principal parts, considered both with reference to territory and population. One of these parts, with some small additions from other townships, was, at the [121] ■same time, transformed into a new township, to be and as since called Calumet township, the remaining part continuing to be designated and known as North township. On the second Monday of the succeeding June, Shoenaman, who had, in the mean time, become trustee of Calumet township, demanded of Brown, who was at the time auditor of the county, that he should issue to him a warrant on the county treasurer for a proportionate amount of the different funds which had accumulated during the preceding year from taxes assessed in the name, and for the use, of North township, and Brown declining to issue such a warrant, this suit, which was an application, on the relation of Shoenaman, for an alternative writ of mandate against Brown as such auditor, was commenced. After an alternative writ of mandate against Brown had been ordered, Towle, the appellant, being then trustee of North township, applied to be admitted as a party defendant to the proceeding, claiming that, upon the facts stated in his petition, North township continued to own, and was, therefore, entitled to the exclusive use of, the entire amount of the several funds of which Shoenaman was seeking to recover, on behalf of Calumet township, a proportionate part. As to the facts so relied upon by Towle, see the case of Towle v. Brown, ante, p. 65. The circuit court overruled Towle’s application to be admitted' as., a party defendant, upon which an exception was reserved. Subsequent proceedings resulted in making the writ of mandate peremptory, and in a judgment ordering Brown to issue his warrants on the county treasurer for estimated proportionate amounts of the respective funds in litigation, having reference to the taxable property, and the number of persons charged with a poll tax within the then territorial limits of North township, and to the relative taxable property, and the number of persons charged with a poll tax, within the [122] territory taken from North township and then constituting-the greater part of Calumet township. Filed March 16, 1887. Towle alone appeals, and assigns errors upon the decision of the circuit court in overruling his application to be made a party defendant to the proceedings below. Considering the facts stated in Towle’s petition in the light of the construction placed upon substantially the same facts, in the case of Towle v. Brown, supra, North township had no equitable claim to, and hence no interest in, the several sums of money for which Shoenaman was seeking to have warrants issued in his favor for the use of his township. Towle’s petition, consequently, did not present a state of facts entitling him to be admitted as a party to this suit. R. S. 1881, section 272. The judgment is affirmed, with costs.