State ex rel. Moore v. Board of Commissioners

Gillett, J. Action by way of mandate to compel the board of commissioners of Clinton county to order the placing upon the duplicate of a tax that bad theretofore been levied in aid of a railroad company, but which had been suspended until the completion of the railroad. March 5, 1818, a petition was filed before the board of commissioners of said county for the submission to the voters of Center township therein of a proposition to aid the Frankfort & State Line Bailroad Company. Such proceedings were afterwards had that pursuant to an election a tax was levied by such board. April 29, 1886, one David P. Barner, a freeholder, and more than twenty-five other freeholders of said township, filed with said hoard a — 583 — petition asking that the aid so voted be canceled, for the reason “that said railroad company had not-within five years expended in the construction of said road in said township an amount equal to the aid so voted.” Due notice of said petition was given, and on June 16, 1886, one Samuel O. Bayless, a resident taxpayer of said township, appeared, and filed a cross-petition in said proceeding, alleging, in substance, the voting of said aid; that said railroad company, within the time required, h^d done an amount of work in the construction of said railroad in said township equal to the amount of the aid so voted, and had fully completed its entire line in said township and 'county. His petition concluded with a prayer that said board order said tax collected as if the collection thereof had never been suspended. Both said Bayless and said railroad company filed an answer to the petition of Barner and his associates, and they joined issue with said Bayless upon his cross-petition. A trial before the board resulted in a judgment canceling said tax and aid, and from said judgment Bayless and the railroad company appealed. Pending the appeal the Western Construction Company was made a party on its own application, and filed an intervening petition. The case was ultimately sent on change of venue to the White Circuit Court, and said court, after a trial, rendered judgment’ that the petitioners, Barner et al., were not entitled to any relief; that said railroad company, by expending a sum of money in excess of $20,000, had, “according to law, earned said sum of $20,000 local aid voted by the taxpayers of said Center township in favor of said railroad company;” that said construction company had acquired the right to said appropriation by assignment; and directing that the board of commissioners of said county of Clinton enter upon its records an order requiring that said tax be immediately collected by the treasurer of said county, as though the same had never been suspended. Eurfher orders were — 584 — njado in said judgment upon the auditor and treasurer of said coiinty as to the steps they were respectively required to take to collect and pay over said aid. Erom said judgment said petitioners prosecuted an appeal to this court, where said judgment was affirmed. Barner v. Bayless, 134 Ind. 600. In the course of the opinion in that ease it was said: “Many of the questions discussed by counsel, in their briefs, when applied to this case, are of no importance whatever. The board of commissioners of Clinton county was not a party to the cross-complaint of Bayless, nor ^was the county auditor or county treasurer such, party. They were not parties to this suit in any sense. It is plain, therefore, that any order the court rnay have made in this case, in relation to the collection of the tax in controversy, was a mere nullity, for the reason that no party was before the court upon whom such an order could operate. Such order could not affect the appellants, because they had no power to execute , it; nor were any orders made by the court affecting them, beyond fixing their liability for the tax which they were seeking to avoid. Nor does the order of the court directing that the tax, when collected, be paid over to the appellee, the Western Construction Company, in any manner affect the appellants. If they are compelled to pay the tax in controversy, it is immaterial to them whether it is paid over to the railroad company or to the construction company which performed the labor' of constructing the railroad. Stripped of these immaterial matters, we reach the controlling question in the case, and that is the question as to whether the railroad company had expended, in Center township, in the actual construction of its road, a sum equal to the donation voted by the township. This was the question for trial before the circuit court. As a question of fact, it was hotly contested, and the evidence relating to it was conflicting. The court hearing the evidence reached the conclusion that the company had expended, in — 585 — the, actual construction of its road in Center township, a sum largely in excess of the amount of the donation in controversy. With this conclusion, we have neither the power nor the inclination to interfere.” After said cause was disposed of on appeal to this court, said Bayless and the Western Construction Company instituted contempt proceedings against the members of said board and the auditor and the treasurer of said county in the White Circuit Court, charging that said officers had failed to carry out the provisions of said judgment after a certified copy of the same had been served upon them. Upon a hearing, said officers were committed by said court, and they appealed to this court, and here secured a reversal of said judgment. McKinney v. Frankfort, etc., R. Co., 140 Ind. 95; Davis v. Bayless, 140 Ind. 700. The ground of reversal, as expressed in the McKinney case, seems to have been that the officers were not subject to proceedings for contempt in failing to obey the directions of a judgment to which they were not parties; but it was stated by this court, in ruling on the petition for a rehearing in said cause, that “if the appellant refused to discharge a duty enjoined upon him by law, a proper remedy was provided to compel him, upon his failure, to show sufficient cause for his refusal.” Subsequent to the disposition of said causes, the relator herein commenced a proceeding by way of mandate against the auditor and treasurer of said county to compel them to proceed to collect the tax. A demurrer was addressed by the defendants in said action to the application and alternative writ. The demurrer was sustained, and final judgment rendered against said relator. The latter appealed to this court, but the judgment was affirmed. State, ex rel., v. Burgett, 151 Ind. 94. In the latter case a somewhat different view seems to have been taken from that expressed in Barner v. Bayless, 134 Ind. 600, as to the effect of the judgment against the board of commissioners, — 586 — but.the rulings or statements of this court in the Barner case were not pleaded in the Burgett case, and this court held that it could not take judicial notice of said decision. As neither the taxpayers nor the appellee herein were parties to the Burgett case, the rulings of this court in the opinion therein rendered have not become the law of the case, but, as they accord with our present view, we quote the following from the opinion therein rendered: “Under the provisions of §7865 Burns 1894, §5778 ITorner 1897, the White Circuit Court was authorized to make a final determination of the proceedings appealed from, and cause the same to-be executed; or it had the power to send the same down to the board with orders how to proceed, and require such board to comply with the final determination made by the court in the premises. The White Circuit Court found that the railroad company had within the proper time expended in the construction of its road in said township, more than the amount of the aid voted, and had fully complied with all the requirements of the statute; and said court was fully authorized to render final judgment ordering 'that said tax be collected at once, the same as though the same had never been suspended/ It is not alleged, however, in the application or alternative writs, that the White Circuit Court rendered such judgment; but, on the contrary, it is alleged that said court rendered judgment that 'the board of commissioners of said county of Clinton, in the State of Indiana, shall enter upon its record an order requiring that said tax be immediately collected by the treasurer of said county as though the same had never been suspended/ It, in effect, as it was fully empowered to do, sent the same down to the board of commissioners of said county, .with orders that such board enter such final order and judgment. This order was binding on the board of commissioners of Clinton county, as a judicial body; and they were required to make and enter such order and judgment as directed, the — 587 — same as a circuit court is required to perform and execute the orders and mandates of this court made in a case appealed from such court. It is not necessary, in order to bind an inferior court in a case appealed from it, that the member or members thereof should be made parties to the case on appeal. Until said order of the White Circuit Court is entered by the board of pommissioners of Clinton county on its records, appellant cannot claim or assert any rights thereunder against appellees. It is not averred that the board of commissioners of Clinton county ever entered said order on its records. Such allegation was necessary to render the application and alternative writs sufficient to withstand the demurrer.” As to the pleadings in this case, they consisted of four paragraphs of petition, with, accompanying alternative writs, the general denial, the fifteen years’ statute of limitations, and a reply thereto. Upon the conclusion of appellant’s evidence, the court directed a verdict against it, and upon the return of said verdict rendered final judgment thereon. We have set out the greater part of the evidence above, and in connection with such further state1 ments as to the evidence as hereinafter appear, a sufficient understanding of the facts can be had. The question as to the propriety of the court’s instruction is duly presented, and it is also assigned as error that the court overruled the demurrer to appellee’s plea of the statute of limitations. A preliminary question has been presented by a motion to dismiss the appeal, assigning as a reason that appellant has failed to make parties to this appeal, and to serve with process, the individual members of the board of commissioners who were inducted into office subsequent to the rendition of the j udgment in the court below. An affidavit Avas filed in support of said motion. It is contended on behalf of appellant that the board, in its collective capacity, was the sole defendant beloAV and appellee here, and that the members thereof Avoro only men — 588 — tioned as showing the officers against whom the writ was to run. We incline to this view, but, if this be wrong, it does not follow that the appeal should be dismissed. If the individual members of the board had been the sole defendants in the case, there would have been a fair basis for the argument that upon an appeal from a judgment in their favor, which would in effect be a judgment in favor of the officers, their successors should have been served with process, if not made parties appellee. Schrader v. State, ex rel., 157 Ind. 341; Elliott, App. Proc., §153. While it may be true that' for most purposes there is wanting authority under §7820 Burns 1901 to sue a board of county commissioners, except concerning a matter pertaining to its corporate affairs, or for an act done in its corporate capacity, yet it is provided by statute that writs of mandate may be issued to any inferior tribunal, corporation, board, or person, to compel the performance of any act which the law specially enjoins, or a duty resulting from an office, trust, or station (§1182 Burns 1901) ; and this, we think, in view 'of the practice that existed before the enactment of the statute, warrants the conclusion that it was the legislative purpose to authorize the issuing of writs of mandate against boards of commissioners to compel the performance of ministerial duties generally. It was sufficient, in our opinion, to make either the board, as such, or all of the members thereof parties. Wren v. City of Indianapolis, 96 Ind. 206. As the board was a party defendant below and is an appellee here, and has boon served with process, it is evident that it is in a position to urge every available ground that may exist in support of the judgment below. If the individual members of the board in their official capacities can be said to have been parties below, it is clear that the assignment of errors continues them as parties here. The judgment was in favor of the officers rather than in favor of the individual incumbents of the offices. Wolfe v. Peirce, 23 Ind. App. — 589 — 591. While it is true that the new members of the board have not been served with process, yet, as the board in its collective capacity is a party, and can offer all available grounds of defense, we think that to dismiss the appeal on the ground suggested would be to pursue a technicality beyond the vanishing point. In any possible view as to who were made parties below or here, it appears that this court has jurisdiction authorizing it to adjudicate every question presented on this appeal between all the parties, and this is sufficient. Wren v. City of Indianapolis, supra; Wolfe v. Peirce, supra. The motion to dismiss the appeal is overruled. We now proceed to a consideration of the principal case. Accepting the view of counsel for appellant that the duty herein sought to be enforced is a duty that has its origin in the judgment of the White Circuit Court, and that the statute could not begin to run until the disposition of said case in this court, we think, nevertheless, that the plea of the fifteen years’ statute of limitations was sufficient. Whether said plea would be borne out by the facts is a question that is not presented. Taking up the question as to whether the facts alleged and proved by appellant stated and showed a cause of action, we have first to observe that the theory on which the alternative writs in this case proceed is that the appellee board is charged with a duty to order the collection of the suspended tax by reason of what was adjudicated by the White Circuit Court. That court having decided the meritorious questions involved, and its judgment having been affirmed by this court, it would seem, upon superficial consideration at least, that' the award of the White Circuit Court should be performed; but, as appellee’s counsel have suggested many reasons which appeal to them as sufficient to uphold the result below, we regard ourselves as called upon not only to decide all of said points, but to express •our views particularly as to a majority of them. — 590 — After a consideration of the objections urged against said proceedings, but before writing upon them, we may say that it is our judgment that but one serious question can exist as to the effect .of said judgment as res ad judicata, and that question grows out of the declaration of this court, upon appeal from such judgment, that the board of commissioners was not bound thereby, because it was not a party thereto. The correct view upon this subject is expressed in State, ex rel., v. Burgett, 151 Ind. 94. The declaration in the Earner case, supra, although incorrect, remains the law of the case, from which the parties cannot now escape; but we should not extend an erroneous declaration of the law beyond what is required. It is true that the opinion in said case declared that the orders made in relation to the collection of the-tax were nullities for the assigned reason that the officer’s were not before the court, and therefore there was no one upon whom such orders could operate; but this court, in the opinion mentioned, recognized and did not disturb the orders made by the White Circuit Court against the petitioners, “fixing their liability for the tax.” It is also to be considered that the opinion was followed by a general judgment of affirmance. Most questions were therefore settled against the appellants to that appeal, and the decision of-such questions has also become the law of the case. Giving to the erroneous declaration of law the narrowest limits necessary fairly to comport with its language, and it results that it must bo held that it was, in effect, declared and settled that all questions of detail with reference to -the enforcement and collection of .the tax were still open. The judgment not only settled the question of performance on the part of the railroad company, but also the question as to the right to have steps taken to enforce and collect the necessary tax. Provision is made by statute for a public notice of the pendency of a proceeding to cancel an aid voted by a township, and we think that the result of a proceeding under — 591 — such a statute is to conclude all persons in interest as to questions which might hare been properly litigated under the issues tendered by the petitioners. Persons brought in under the notice provided by statute in such a ease may hie a cross-petition setting up matters germane to the original petition, and obtain affirmative relief. See Stoner v. Rice, 121 Ind. 51, 6 L. R. A. 387. The conditions of the appropriation having been shown to have been performed by the railroad company, the suspended tax ought to have been ordered collected; and as the same statute that provides for the hearing of the application to cancel has also provided that upon performance the commissioners are to order the collection, we think that the granting of such relief upon a cross-petition was clearly authorized. As the result in the circuit court was one that might have been reached under the issues, and as it concluded all persons having an interest as to the right to have the tax ordered collected, we are unwilling to hold that the board of commissioners' — the mere tribunal or agency to effectuate a proper result — can contend concerning questions that are settled against all of the taxpayers. It is our view that by reason of the former decision there only remains open the question as to the provisions that should be made for the collection and paying over of the tax. It may bo admitted that under our ruling but routine matters remain to be determined, and that, with all else settled, the duty of the board in the premises is clear; but the fact that this result is obtained ought not to lead us to accord any broader operation to a wrong decision. In our opinion, as the judgment of the White Circuit Court has settled the question as to fclio right to have a tax levied against the township, and as that court is now prevented from enforcing its judgment by reason of a declaration of this court on appeal that rendered the provision made nugatory, there is sufficient reason for holding that such judgment as it now stands creates a duty upon the part of the board that can — 592 — be enforced by writ of mandato. The taxpayers are concluded on all points except as to the orders against the officers by the result of the Earner case, supra, and to the extent that the taxpayers are concluded it must be held that the board cannot re-fight the old battle. Upon the points upon which the decision in said case remained res adjudicata, after the disposition thereof in this court, it must still so remain, and from the establishment of such facts by an adjudication that binds all interested parties flows the privilege of enforcing the right as against the board whose lawful duty it is to accord such right. It is claimed by counsel for appellee that there is a variance between the allegations of the various paragraphs of the writ and the judgment rendered. There is no such variance between the fourth paragraph and the transcript of the judgment offered in evidence. Whatever is omitted from the judgment as alleged in said paragraph is what appellee’s counsel contend was subtracted from the judgment by the declaration of this court on appeal. It is not a variance, however, that the judgment as rendered contained further provisions than those pleaded. The description of the judgment in the writ was correct as far as it went. Whether there was a variance between the evidence and any other paragraph of writ, and whether appellee could be heard to urge the question as to a variance here, are questions that it is not necessary to decide. We do not think that the judgment of the White Circuit Court that was pleaded and proved was without the issue. Even if the money was spent on an extension of the road within the township, yet it was a question of law for the White Circuit Court whether this was a performance within the issues; and, besides, it was adjudged on appeal to this court from said judgment that, independently of said question, the finding of the White Circuit Court was right. It must also be borne in mind that the finding and judgment of the White Circuit Court was against the petitioners — 593 — upon their petition, and this amounts to an affirmance of the converse of the allegations of said petition as to the failure to spend an amount of money equal to the appropriation in the construction of the road in the township within the time provided by law. As to the claim that relator was without interest, earlier decisions have settled the proposition that the question is one between the taxpayers. Board, etc., v. Louisville, etc., R. Co., 39 Ind. 192; Sankey v. Terre Haute, etc., R. Co., 42 Ind. 402; Jager v. Doherty, 61 Ind. 528. It is our view that such tax as is collected should be collected from the entire property of the township as of the date when the board makes the order sought to be enforced in this proceeding, and it is therefore sufficient if the relator be a taxpayer at the time of the institution of the action. The legislature evidently did not contemplate' that a case would arise where there would be unnecessary delay in the collection of the tax. This consideration explains some of the provisions of §5369 Burns 1901, but it is evident from the whole course of the enactments that it was intended that whenever such a tax was collected it was to be from the whole body of the township, and not as special assessments. See Lake Shore, etc., R. Co. v. Smith, 131 Ind. 512. After the judgment was recovered in the original action, relator was not obliged to relile the demand for the collection of the tax before the board, and to appeal in case it decided adversely. The proceeding originally was judicial in its nature, but, after all questions having in them the element of judicial discretion had been eliminated by the adjudication against the taxpayers, there remained but a ministerial duty for the board to perform; that is, to order the suspended tax collected. Carroll v. Board,.etc., 28 Miss. 38; McKinney v. Frankfort, etc., R. Co., 140 Ind. 95. — 594 — It is contended that the writ alleges that there was a donation of stock to the railroad company, while the petition which was filed before the board provided for a donation or a taking of stock. Waiving the question as to the effect of the former adjudication, we proceed to examine the point made. The petition was in form as stated. The board ordered an election “for the purpose of taking the votes of the legal voters of said township upon the subject of appropriating $20,000 in money by said township for the purpose of aiding in the construction of the Frankfort & State Line Railroad, as prayed in the foregoing petition.” The notice of the holding of the election stated that the vote was to be taken “upon the subject of said township aiding the Frankfort & State Line Railroad Company in the construction of a railroad into said township by donating money to said company to the amount of $20,000, as provided by an act,” etc. The sheriff’s notice was to the same effect. The subsequent order of the board for the collection of the tax recited that a majority of the legal voters of the township voted in favor of “an appropriation,” and ordered the collection of a tax for the purpose of aiding said railroad company. In a case of this kind, where the petition and the commissioners’ order are ambiguous, but the people vote on the distinctive proposition to make a donation, we think that their vote settles the nature of the aid to bo extended. Faris v. Reynolds, 70 Ind. 359; Lafayette, etc., R. Co. v. Geiger, 34 Ind. 185. As said in the former case: “The people of a township, who vote this tax upon themselves, should have the right, and, as we think, have the right under the law, to determine by their vote the manner in which the money shall be used, whether by donation of the money or by taking stock in the company. They may be supposed to know what their interests in the matter may be quite as wéll as the board of commissioners of the county.” It appears that after the judgment was rendered by the — 595 — White Circuit Court in the main case, the board met, and ordered the suspended tax collected, and that about a year later it made an order setting aside said former order and declaring it void. It is now insisted by appellee that, if the latter order was entered without jurisdiction, it did not affect the prior order, while, if there was jurisdiction to make the subsequent order, appellant should have appealed therefrom. Appellee’s last order-, as the record in this, case shows, practically operated to prevent the auditor from putting the tax on the duplicate, and it is hardly eonscionable for appellee to insist upon the invalidity of such order, as it is not willing to concede that the former order is still operative. In point of law it is probable that the second order was void, but we hold that, as the record stands, relator had a right to require the entering of a new order. The conduct of the board when demand was made of it, as well as the long course of litigation, warranted the inference that it had not made any other order concerning the collection of the tax except as above mentioned. If it had, we think that, as a matter peculiarly within its own knowledge, it should have offered affirmative evidence upon the subject, instead of insisting that relator should prove negatively that no order had been made for the collection of the tax after the making of the entry last mentioned. See Shearer v. State, 7 Blackf. 99; Stevenson v. State, 65 Ind. 409. It is claimed that the record introduced in evidence shows that prior to the proceedings on which tire judgment in the White Circuit Court was based there had been two adjudications by said board against the right to have the tax collected, and that, therefore, the board had exhausted its power further to consider said claim. Waiving all question as to the issues here, it is a sufficient answer to this proposition that no such issue was tendered in said former cause, and, as the question as to the right to have — 596 — tlie tax collected was determined against the taxpayers therein, the relator here is entitled to the benefit of the later adjudication. IVe can not sanction tlie view that a judgment is to be regarded as a nullity for the reason suggested in a case where tlie board was acting judicially, with jurisdiction over tlie parties and over tlie class of actions to which the particular case belongs, where nothing appears in the record to suggest any defect of jurisdiction. Wo think that the record does not bear out the claim that the Carroll Circuit Court did not grant a new trial to the cross-complainants. The record shows that the court “grants a new trial herein.” The claim that a new trial was granted to the defendants, and not to them as cross-complainants, is also contradicted by the further proceedings in the cause. We think that tlie court erred in directing a verdict in appellee’s favor. We now proceed to a consideration of the cross-errors assigned by appellee respecting the rulings below on tlie pleadings. We are of the opinion that the various paragraphs of alternative writ were sufficient for reasons heretofore .expressed. There was no available error in the sus-, taining of a demurrer to appellee’s paragraphs of answer numbered from two to twenty-three, both inclusive. Tlie matters pleaded in certain of said paragraphs would have been admissible under the general denial. Upon only two points do we feel justified in further expressing ourselves. The fact that this court stated in its opinion on the petition for a rehearing in the Earner case that it was not necessary, to sustain the judgment, that it should appear that the railroad company had expended a sum equal to the donation in the construction of its road in the township does not amount to a determination that the adjudication in favor of Dayless was invalid. Barner and his co-petitioners were alleging in substance that the railroad company had not expended a sum of money in the con — 597 — struction of its road in said township equal to the donation within the time required by law. Bayless affirmed the contrary in his cross-petition. This court merely held in that particular that the burden was on the original petitioners. In a number of paragraphs of answer appellee alleges as facts matters which were adjudicated to the contrary by the judgment of the White Circuit Court. Counsel for appellee attempt to dissect that judgment in the effort to show that it does not respond to the averments of the cross-complaint,, forgetting, apparently, the force of the adjudication against the taxpayers under the petition to cancel. Nor are we the more impressed with the effort now to bring forward matters of defense that were not made grounds of defense in the former case. As to what may be termed the direct defenses, at least, if a party holds them back when he is sued, he is not at liberty to assert them afterwards. Faught v. Faught, 98 Ind. 470; 24 Am. & Eng. Ency. Law (2d ed.), 781, 782. In concluding this opinion we quote, as much in point, so far as principle is concerned, the following from the opinion of the Supreme Court of the United States in the case of Ralls County Court v. United States, 105 U. S. 733, 26 L. Ed. 1220. “In the return to the alternative writ many defenses were set up which related to the validity of the coupons on which the judgment had been obtained, as obligations of the county. As to all these defenses, it is sufficient to say it was conclusively settled by the judgment which lies at the foundation of the present suit, that the coupons were binding obligations of the-county, duly created under the authority of the charter of the railroad company, and, as such, entitled to payment out of any fund that could lawfully be raised for that purpose. It has been in effect so decided by the supreme court of Missouri in State v. Rainey, 74 Mo. 229, and the principle on which the decision rests is elementary. — 598 — The present suit is in the nature of an execution, and its object is to enforce the payment, in some way provided by law, of the judgment which has been recovered. The only defenses that can be considered are those which may be presented in the proper course of judicial procedure against the collection of valid coupons, executed under the authority of law and reduced to judgment. "While the coupons aro merged in the judgment, they carried with them into the judgment all the remedies which in law formed a part of their contract obligations, and these remedies may still be enforced in all appropriate ways, notwithstanding the change in the form of the debt.” The above case, in substance, expresses our view here. This action is in the nature of an action to obtain what might be termed an execution on the judgment of tlie White Circuit Court, and it is only as to matters that relate to the question as to the form of the execution that are longer open to controversy. We find no available error against appellee, but because of the overruling of appellant’s motion for a new trial tlie final judgment will liave to be reversed, with a direction to grant a new trial. It is so ordered. Monks, C. J., concurs in the result.