Board of Commissioners v. State ex rel. Hamilton , 86 Ind. 8 ( 1882 )

Dissenting Opinion.

Woods, C. J.

The principal case shows that the special power given by law to levy taxes for the payment of the appropriation was exercised and ^exhausted in the manner prescribed by the statute. There is, therefore, no authority for a further levy under the statute. If the unpaid part of the appropriation is a legal obligation against the township, it is one in favor of the railroad company to which the aid was voted, and must be enforced by it in such modes as are known to the practice. Conceding the obligation to be such, I am clear that the relator had no right to bring any action for its enforcement — certainly not this action, which seeks a special levy of a tax for which there is no statutory authority. See City of Connersville v. Connersville Hydraulic Co., post, p. 235. If an enforceable obligation, the railroad company might have sued upon it, and have obtained an ordinary judgment for its collection. The county commissioners have no more power to levy a special tax for its payment than for the discharge of' any other legal or equitable liability of the township to pay money. The township may have money on hand sufficient to pay the demand, and may be ready and willing to pay it, especially when once the proper court shall have declared it bound to do so. No refusal to pay is alleged, and consequently no reason is shown for seeking an extraordinary remedy; certainly not the one sought and awarded in this instance.

The 17th section of the railroad aid law expressly provides that any one of the petitioners, or any taxpayer of the county or township may, by mandate, compel the payment of money collected under the law to the company for whose aid the same shall have been levied and collected; and this court has declared that, under this provision, the company can not prosecute a mandate. “ It is expressed as to who may have a mandate, and this expression excludes all others.” Board, etc., v. Louisville, etc., R. W. Co., 39 Ind. 192. Under this construction of the law, it is clear that if there had been a failure and refusal by the county board to levy the particular taxes provided for in the act, the relator could have compelled such levies by mandate; but when it is proposed to go beyond the specific taxes authorized by this statute, and under the extraordinary powers of the courts, to compel the levy of taxes for the discharge of a legal liability, it is evident, granting the existence of such liability, that the creditor must apply for the writ. It is not a case for “ the enforcement of a purely public right, where the people at large are the real party in interest.” In the legal sense, “the relief is sought merely for the protection of private rights,” and “the relator must shoW some personal or special interest in the subject-matter, since he is regarded as the real party in interest and his rights must clearly appear.” High Extraordinary Legal Remedies, sec. 431.

But this court, as well as the Supreme Court of Kansas, has decided, and Mr. High, at section 390 of his work, cited supra, recognizes the soundness of the distinction, that the mere vote of the electors of a county or township, authorizing the donation or subscription, does not establish a contract relation between the municipal corporation and the railway company. In Board, etc., v. Louisville, etc., R. W. Co., supra, this court said that “All the acts of the commissioners and the voters of the county, in taking steps to raise the money, are between themselves, one the principal and the other the' agent; there is no contract with the company, nor had she any right in, or control over, the matter, till the money is raised and the stock taken.” . This doctrine is not confined to counties, nor does it rest on the constitutional restriction against the taking of stock by counties without paying the money down. On the contrary, this court has repeatedly applied the same rule to the acts of townships, in voting aid to railroads, under the same statute. Sankey v. Terre Haute, etc., R. R. Co., 42 Ind. 402; Petty v. Myers, 49 Ind. 1; Jager v. Doherty, 61 Ind. 528; Bittinger v. Bell, 65 Ind. 445. To same effect, Union Pacific R. W. Co. v. Commissioners, etc., 6 Kan. 256.

The theory of these decisions in this respect, as substantially expressed in the Kansas ease, is, that the people of a county or township can not, in their primary capacity, enter into contract relations binding upon the municipality, but must act through, their duly constituted agents or officers. The agent, under our statute, is the proper county board; and while in this instance it is shown that the petition and vote were for sums to be invested in the stock of the proposed railroad company, it is not alleged that the board of county commissioners had made, for the townships concerned, a subscription to the stock of the company in any sum whatever. There was, therefore, no contract, or legal liability, which the company, in its own behalf, could enforce.

The principal opinion, as it seems to me, involves a departure, which ought not to be taken, from soundly decided cases.