Demaree v. Johnson

Howard, C. J.

The questions discussed on this appeal relate to the voting by a township of aid to a railroad, under provisions of section 5340, Burns’ R. S. 1894 (4045, R. S. 1881), and following sections. .

The board of commissioners of Johnson county, over the remonstrance of appellants, found that on December 21, 1894, the voters of Pleasant township, in said county, at an election duly held for that purpose, decided, by a majority of 53 votes,, that a tax of $34,000.00 should be levied in said township in aid of the construction of the Indianapolis, Greenwood and Franklin railroad. Thereupon the board ordered the levy of a tax, in pursuance of -the provisions of the statutes above cited.

It is first .contended by appellees ■ that the record shows no appeal to the circuit court from this action of the county board, and they move for the dismissal *421of the appeal to this court, for the reason that, “No appeal bond was filed by the appellants with the auditor of Johnson county, nor was any bond approved by said auditor, as required by law for the taking of an appeal from the order of the board of county commissioners.”

Counsel cite Shirk v. Moore, 96 Ind. 199, which decides that if no .appeal bond is filed with the auditor, the appeal may be dismissed in the circuit court. A like decision was made in Crumley v. Hickman, 92 Ind. 388. In those cases, however, the objection was taken in the circuit court. Here, there is nothing to show that any motion was made in the trial court to dismiss the appeal," or that any suggestion was there made that no appeal bond had been filed.

It is provided in section 7860, Burns’ R. S. 1894 (5773, R. S. 1881), that an appeal from the county board to the circuit court shall be taken “by the appellant filing witlj the county auditor a bond.” But there is no requirement that this bond, or a copy thereof, shall be made a part of the record in the circuit court. The succeeding section, section 7861, Burns’ R. S. 1894 (5774, R. S. 1881), provides that, “Within twenty days after the filing of such appeal bond, the auditor shall make out a complete transcript of the proceedings of said board relating to the proceedings appealed from, and shall deliver the same, and all the papers and documents filed in such proceedings, and the appeal bond, to the clerk of the court to which the appeal is taken.” All that needs to appear, then, in the auditor’s transcript, is a copy of the proceedings of the board. The bond is no part of those proceedings; but is simply to be transmitted to the clerk with the other papers and documents. In the absence of any showing to the contrary, and of any objection taken in the court below, we must pre*422sume that the bond was filed with the auditor and delivered to the clerk, as required by the statute, and that the court therefore rightfully assumed jurisdiction of the appeal from the county board.

In the circuit court the appellants amended and re-filed their remonstrance against the order of the board. To the first, second, third, fourth, eighth, ninth, tenth, eleventh, and twelfth specifications of the remonstrance the court sustained a demurrer, and the appellants, standing by their remonstrance so made and demurred to, and refusing to plead further, this appeal followed.

It is provided in section 5342, Burns’ R. S. 1894 (4047, R. S. 1881), that the county auditor’shall give notice of the election to be held for voting aid to the construction of a railroad, by publication for at. least four weeks in some newspaper of general circulation, and also by printed handbills to be posted by the sheriff in ten public places in the township three weeks prior to the election.

In the first, second, and third specifications of remonstrance it is averred that the notice so required was not given. The first specification reads, as follows: “Because no notice was given to the voters of the pretended election held in said Pleasant township on the 21st day of December, 1894, relative to the making of such appropriation.” The demurrer admits the truth of this averment, and it is no answer on this appeal to say, as counsel do, that some form of notice was given, and that such notice was by the board deemed sufficient. If such were the case, appellees should have replied to the remonstrance, and made proof of the notice, if any, which was given, so that it might be determined whether the same were sufficient. On a collateral attack it might be presumed that the board found that notice was given, *423and. that the same was sufficient (Tucker v. Sellers, 130 Ind. 514); but this is a direct appeal, and if there was in fact no notice, as admitted by the demurrer, the election should be declared void. Railroad aid laws, as they impose a burden upon the public, and, in a manner, deprive the owners of the full control and disposition of their property, by giving to others the power to encumber it, should be strictly construed in favor of the rights of property. Garrigus v. Board, etc., 39 Ind. 66; Miles v. Ray, 100 Ind. 166.

The objection that election sheriffs were not appointed for the election, may perhaps be regarded as technical, unless some person were shown to have been thereby deprived of his right to vote, or some other serious injury were thus caused. A railroad aid tax will not be overthrown for mere irregularities that do not affect substantial rights. Irwin v. Lowe, 89 Ind. 540.

In the eighth, ninth, and tenth specifications of the remonstrance, it is charged that the election was vitiated by fraudulent practices, including bribery, on the part of appellees. We do not think these specifications were sufficiently explicit, so as to require that the demurrer should have been overruled. Of course, if such fraud and bribery were practiced to such a degree as to affect the result of the election, the tax ought not to stand. The unbiased vote of the people should'be sought in this, as in every other election, and it might have been better that the appellees should have been ruled to reply to the charges so made.

There was no error in sustaining the demurrer to the eleventh and twelfth specifications of the remonstrance. If the tax had been legally voted, the board might rightfully levy the same. If, however, the board exceeded its duty in ordering the tax placed *424upon the duplicate before the road had been permanently located in the township, in violation of section 5368, Burns’ B. S. 1894 (4068, R. S. 1881), that would he an error not affecting the questions now before us, which concern only the legality of the election and of the action of the board in making the levy.

• The judgment is reversed, with instructions to overrule the demurrer to the first, second, and third specifications of the remonstrance, and to each of them, and for further proceedings.