Kerlin v. Reynolds , 142 Ind. 460 ( 1894 )

Hackney, J.

The appellant, for himself and on behalf of the citizens and taxpayers of the city of Delphi, sned to enjoin the collection, as taxes for township purposes and to the use of Deer Creek township, the sum of seven cents on each one hundred dollars in value of the real and personal property within said city and owned by the appellant and such other taxpayers of said city.

Two questions are presented by the record and discussed by counsel;, the first challenging the authority of the township, for township purposes, to levy a tax upon the property within the limits of and subject to taxation by an incorporated city, and the second denying the sufficiency of the record of the county commissioners to disclose a concurrence by the board in such levy. Our conclusion renders it unnecessary to consider the manner of making the levy since we have no doubt of the absence of any authority to make a levy for such purposes upon such property.

The question does not depend upon the constitutional authority of the Legislature to subject the property of the minor political subdivision to taxation for the purposes of the major division, for the reason that the Legislature has not, so far as we have been able to learn, attempted by any existing legislation to exercise any such authority.

The township trustee is an officer chosen by the people whom he serves, and these comprehend not alone the people of the township outside the incorporated cities and towns, but also the citizens within such cities and towns. Outside the cities, his duties relate to the schools and the roads. Even these duties are so performed that when relating to the .schools he acts as the school trustee, and when relating to the highways and to some other township affairs he is deemed to act for the civil township, and is the civil township trustee, commonly known as the township trustee. In the performance of any such duties he does not serve the people of the cities, and owes them no obligation for the manner in which he performs such duties. With relation to the highways and the schools within the city, they are subject alone to official control of officers of such city, and are created, supported and maintained alone by the citizens of the city through a system of taxation provided by the Legislature for enforcement by and through the official agencies of the city. In these respects, and possibly in some others, the city corporation and that of the school or civil townships are entirely separate and distinct, though the city is within the geographical limits of the civil township.

There is no authority given to tax the people of a township, outside the city, for the support of interests within and relating alone to the city in its distinct corporate capacity, and it may, in like manner, be said that those interests which are peculiar to the citizens and the property outside such city must find support alone from those whose interests they are, namely, those of the township as distinguished from those of the city. In the absence of affirmative legislation commingling such interests, dividing such burdens and providing that a common officer shall protect and enforce them, we must hold that they are to be deemed separate and treated distinctly. This conclusion necessarily follows from the nature of our forms of local government. This conclusion does not, however, exclude the idea that there may be interests general and mutual as between the citizens and the property within the cities and within the civil township. In the support' and care of the poor within the civil township, including those within the cities, there are such interests, and there could certainly be no legal objection to a method of taxation bearing alike upon the citizens and property of the whole township, including such cities. For such purposes, and in view of such general and mutual interests, such citizens and such property would constitute a taxing district. Therefore, “the nature of the tax will determine the district,” as said by Judge Cooley in his work on Taxation, p. 153.

The laws of this State have made the support of the poor a county system in the matter of levying and collecting the taxes for that purpose, and in the one respect of constituting the township trustee an overseer of the poor is such system a township system. The cities and towns, under our general laws, maintain no separate methods of caring for the poor, but for that purpose the trustee is the agent and officer for them in common with the citizens of the township outside of the cities. In this respect, at least, is the trustee the officer of the citizens of both the city and the township, outside of the city, and in this is found an answer to the argument that if not a representative of the city population, that population should and could have no voice in his election.

If we are correct in the conclusion that the urban and suburban population and property of a township may properly be the subjects of a common tax, and that such citizens are entitled to act in common in the election of an officer to perform a public duty in which both are interested alike, then it remains to inquire whether a tax for township purposes creates a fund in the expenditure of which there is any common or mutual interest or duty. The appellant earnestly maintains that- there is no such interest, while the appellee’s learned counsel insist that the trustee renders services which inure to the benefit of the inhabitants of the city; and that townships may maintain public cemeteries and beep them in repair for use by all of the inhabitants of the township for the burial of their dead. No service is specially mentioned and none occurs to us, saving that rendered as overseer of the poor, and for that he is paid from the county treasury. R. S. 1881, section 6009. The act of February 29, 1893 (Acts 1893, p. 158), is the only permission to township trustees to maintain cemeteries, that has come to our notice. The levy in question was made in June, 1892, and could not have been made in view of or by the authority of that act. We are not inclined to the view that the act would permit' the trustee to maintain a cemetery for the use of residents of the incorporated city, but this we need not here decide.

It is not claimed ,by the appellee that the levy can be justified for the purpose of compensating the trustee for services as an inspector of a township election, and since no such election has been held since April, 1890, and by the act of March 2, 1893 (Acts 1893, p. 192), such elections will hereafter be held as a part of the general elections, no such claim could reasonably be made.-

Section 5995, R. S. 1881, directs a levy, for township purposes, upon the property of the township. In the same connection it is directed that such levy shall be made for road and other purposes. We have no doubt, in the absence of a common interest between the two municipal corporations, the city and the township, this statute should be construed to apply to the property of the township as distinguished from that within the limits of the independent municipality, the city.. The appellees’ learned counsel cite the case of Tilford, Aud., v. Douglass, Tr., 41 Ind. 580, as contrary to this view. That case involved the question of the power to levy a tax, for township purposes, upon property within an incorporated town, and it was held that, as overseer of the poor, the trustee’s salary was payable from the fund raised by such levy, and that he had to do with the streets, alleys and highways of the town, the taxes for which were levied by him. The power was there upheld upon the theory of mutual interests, urban, and suburban, in the objects and purposes for which the levy was made. Whether such interests existed at the time, and as between town and township municipalities, is not a question with which we are now concerned, and it is sufficient to say that neither of such interests so held to be maintained in common are now maintained in common by the people of the city and of the township.

By the act of March 6, 1889 (Elliott Supp., sections 1977 and 1978), the act of March 7, 1891 (Acts 1891, p. 349), and the act of March 4, 1893 (Acts 1893, p. 298), the salaries of township trustees in townships containing populations of from 25,000 to 100,000 were specially provided, and by the first two of said acts the rate of compensation of all township trustees, other than those whose townships contained such special populations, was provided.

By none of these acts is the question before us affected. If injustice may be done by the special acts mentioned, in the townships where such special salaries are provided, that is not a reason for departing from what we believe to be the true rule in the case before us. The responsibility for that injustice, if any, must rest with the Legislature, and is not for consideration by this court.

We conclude, therefore, that the levy in question was without authority of law, so far as it included property within the city of Delphi; and that the ruling of the circuit court was erroneous.

Filed March 9, 1894.

The judgment of the circuit court is reversed, with instructions to grant the appellant’s motion for a new trial.