Hide Article Text (OCR)
INDIANA SUPREME COURT RE VERSES ITSELF IN HAMIL TON COUNTY CASE. Indianapolis, Jan. 26.—The su preme court of Indiana yesterday re versed its decision of November de claring the gravel road law uncon stitutional.By the decision yester day the law, even to the three-mile provision, is held valid and all doubt of the legality of grave road bonda ry removed. There is consequently great relief in banking circles. The prevailing ‘opinion is based largely upon the meaning of the word ‘‘In cludes, as it appears in the law, in the prevailing opinion, held by Judges John V. Hadley, Oscar J1. Montgomery and Quincey A. Myere, the word is eliminated as causing an absurdity, and the word “Including which gives the clause meaning, is read into the law on the ground that “Includes” was a typographical error. In the dissenting opinion, written by Judge Leander J. Monks, a different view is taken of the meaning of the word ‘Includes,’ the opinion being held that it is Intended, and not a typographical error. There i a further division upon the question of fixing the dividing point for townships which snall and which shall not come under the provisions of the law. The division is fixed mak ing the law apply only to townships containing a city or town under 30, 000 population. The prevailing opin ion says in some cities approaching 80,000 there may be necessity for im proved streets, but they are not nec essary in all incorporated towns and elites. The dissenting opinion d eclares that such a classification is arbitrary and does not inhere in the subject matter. The case was that of Samuel WM. Smith against the board of county commissioners of Hamilton county. In a decision in November the decis ion of the Hamilton circuit court was reversed and the law declared un constitutional. The immediate ef fect of the act was to suspend road building all over the state, and call into question the validity of all bonds issued foruilding gravel roads. A great protest arose from estizana and gravel road contractors who argued that the decision would bring road building to a standstill for the next three years, besides making deep financial inroads upon men who had entered upon the work of road building in good faith. The oral argument was heard January 4. The decision was not unexpected, perhaps, because so eagerly hoped for. The decision spread of record in the case is substantially as follows: “Appellants seek to enjoin the commissioners from proceeding, un der Sec. 62 to 83, inclusive, of the act of 1905, as amended in 1907 (Acts 1907, p. 137, $7,711 et seq., Burns, 1908.) in the construction and improvement of certain highways by grading, graveling, and the like, and from issuing bonds In payment thereof, and to enjoin the county treasuers from selling such bonds, and the county auditor from placing upon the tax duplicate any levy of taxes that might be made for the payment of said bonds. ‘The complaints in six paragraphs to each of which a separate demurrer for insufficiency of facts was sus tained, and appellants refusing to plead further, judgment was ren dered against them that they take nothing and pay the costs of the pro ceeding. “The action of the court in sus taining the demurrers presents the questions” for decision. “Enact paragraph of the complaint is so framed as to question the con stitutionality of some provisions con tained in the several sections of the law of 1905, above referred to, and since no other objection is made to, the sufficiency of any paragraph we deem it unprofitable to set forth the, several averments. “The questions created center in the proper construction to be given to Sec. 63, as amended in 1907, (Acts 1907, page 137), being No. 712, Burns, 1908 ,and aave foun dation In the sixth paragraph of com plaint. The contention arises over; the word “includes,” occurring in the third line of the amended sec tion. So much of the section as’ presents the question reads as fol lows: 4‘sWhenever a petition ‘stoned by fifty or more freeholders and voters of any township ‘in any county of this state includes any incorporated town or city in such township hav ing a population of less than 30,000 inhabitants praying,’ and the like, certain things may be done. It 's seen on first blush, if we read the lines as they are written,, the word ‘includes’ conveys the sense of absurdity. It is clearly the very subject ‘petition,’ and to read that whenever a petition signed, and the like, includes any incorporated town, and the like, we read nothing but nonsense. It is in effect agreed that thereas been a misprint, an omis sion or clerical error in the section as printed. “Tzig claimed on behalf of the ap pellants that, in conformity to leg islative intent, In Heu of the word includes,” there should be read into the section the words ‘which town ship contains an incorporated town,' and the like. Appellees claim that the words a misprint or a clerical error, and for ‘includes’ should be read ‘including.’ The difference in these contention a s a material. The reading, as appell ants would have it, follows: “Whenever a petition signed by fifty or more freeholders and voters of any township in any county of this staet, whulc township contains an incorporated town or city in such township having a population of less than 30,000 inhabitants, praying that any public highway may be improved or laid out and improved,’ and the like, the board of commissioners shall proceed to carry out the provisions of the act, . “If the construction contended for by appellants is right, it is then plain that the board of commisssion ers has power to authorize the con struction of such roads in but ona class of townships, namely, those containing an Incorporated town or city of less than 30,000 inhabitants, and that it has no power or jurisdic tion to authorize such construction—— first, in townships having only towns or cities of 30,000 or over inhabi tants, and second, in townships ‘hav ing no incorporated town or city at all.Under such a law perhaps two- thirds of the townships of the btm, —and as a class doubtless the most needy—would be denied the benefits of the statute. “Such a classification would be unnatural, articificial and unreason able and special legislation In vio lation of Sec. 22, Art. 4, of the con stitution, which forbids the passage of local or special laws for the Iny uy ont or improvement of highways. “When the same lines are read as maintained by appellee, they are as follows: ‘Whenever a petition signed by fifty or more freeholders and vot ers In any township in any county of this state, including any incorpor ated town or city In such township having a population of less than 30, 000 Inhabitants, praying,’ and the Nice, the commissioners shall proceed to carry out the provisions of the act. “Under this reading it is clear that the legislature meant by this provis ion to authorize a commencement of proceedings upon the petition of fifty freeholders and voters of any township, including the freholders, and voters of all incorporated towns and cities in the township of less than 30,000—Intending ,thereby to make eligible, to become petitioners, all freehold voters within the town ship, rural and urban alike, except those living in incorporated towns ands cities of 30,000 or over, which latter should be neither taxed, nor eligible to participate in such pro ceedings. By this latter rendering we have ‘beyond question the door of the law open to every township 'n the state, and a classification of a different nature from that appearing under the view maintained by ap pellants. . * “To begin with it wil be useful *o fix in the mind the particular dis trict that the legislature proposed to tax to pay the cost of such improve ments. This is more definite and certain by the provision of Sec. 76 (page 7726, Burns, 1908) which reads as follows: ‘For the purpose of raising money to meet said bonds and interest thereon the board of commissioners shall annually there after, at the time the general tax levy is made levy a special tax upon the property of the township or town ships. Including the towns and cities of such there be, of less than thirty thousand (30,000) inhabitants, in such manner as to meet the principal and interest of said bonds as they become due.’ We Invite special at tention to the word ‘including’ in the above section. “It is manifestly fair that all per sons who shall be called upon to contribute a rateable proportion of the cost of the enterprise should have equal right to become petitioners. “We have reached the conclusion that the view advanced by appellees is the correct one, that ‘includes’ should be read ‘including. . . * 2 “The word ‘includes’ makes its first appearance in’ the codification act of 1905, being the act before us, and then only in the section relia’ ,o7 to the petition and not in the section relating to the taxing district. In the origin of the law it was written ‘including’ in all sections and was 50 repeated by at least five subse quent bodies of the general assembly. s * r s * “Ther is no evidence that the word was changed by authority, and every reasonable hypothesis is that it was the result of a clerical error. We, therefore, hold that the word ‘in cludes,’ occurring in said section 63, i should be read ‘including,’ and the ‘construction of said section as con tended by appellees is sustained. “Such construction makes the law apply to every foot of territory or the state, outside of the limits of incor porated cities of 30,000,or over, in habitants. * s . . = ‘It is maintained by appellants that the question of public utility can not be left to the final decision of the viewers without transgressing the due process of law j provisions of both stae and federal constitutions. The legislature has power to authorize its agents to declare the existence of a necessity, or public utility in the improvement of highways, or to as sume that such exists, and when that body designates an officer or board to determine the question In advance of ordering such improvement, as in this case, the finding of such board or officer with respect thereto is final and conclusive. We, therefore, hold that the au thority conferred upon the viewers, to finally determine the question of public utility of the proposed im provements, was not in violation of any provision of the state and feder al constitution.” making his home with Mrs. Ramsey. While seated at the supper table on ‘Thursday evening he was seized with an attack of heart disease. Members of the household hurried to ‘off as sistance but he was dead when they ‘reached him. He had made no com plaint of feeling any worse than us ual through the day and his sudden death was a great shock to relatives and friends. Mr. Ball is survived by the one sister and three brothere. He was widely known in Madison township and highly respected. Mrs. Harriett Thomas, seventy four years old and a resident of Da viess county all her long and useful Ife, passed away Friday night ‘at the home of Mrs. Henrietta Taylor east of Pleasant Hill. Death fol lowed an illness of only four days. With a daughter, Mrs. Thomas visited last Sunday at the home of Joseph Franklin, a nephew, in Veale township. The following day she was takenll and not decline until death was rapid. Mrs. Thomas was a woman of noble character and rare charm of manner, and she was known and loved by hundreds of people in this city and county. They were shocked by the announcement of her death, as few had any knowl edge of nordiness. Four children survive her. They are George Thoms or cumbuck; Mrs. Peter Harrington of Edwards port; Mrs. John Edwards of Bick bell, and Mrs. Bella Noggles, who lived with her mother. Besides her children she leaves one brother—Jo seph Rapadale of Valley Mills, Tex as, and one sister, Mrs. Laura Frank lin of 408 south Meridian street, this city. ‘Mrs. Thomas was born in Veale township near the Bethel church. She was a daugter of the Rev. Larkin Ragsdale, a Methodist minister. She was married to George Horrall in 1862, and he was killed while fight ing for the union cause in the civil war. In 1865 she was married to John A. Thomas, who died last Sep tember. Since his death she had been lving at the Taylor home with or daughter,Mrs. Noggles. A complication of diseases caused her death. Four days after her committal in the hospital for the insane at Evans ville, where she was taken last Sun day, Mattie Majors, a negreas of this city, died. A mesanze conveying the news of her death was received of Thursday morning by Willis Von Trees, her father, who 's employed at the Hatfield Palmer stores. Mrs. Majors was twenty-six years old and married but she and her huss band had separated. She was ad judged insane recently. Mr. Henley is being faithfully cared for by the nurses and his nerve, Miss Walden, AGED WOMEN IN TOILS. Information filed by James Hud son, a railroad detective, caused the arrest of Mary Henson and Lizzie Smith Thursday morning. The wom en, who live near the BE. J. stock pens, were arrested by Chief of Po- Hee MecCrisaken and were brought before Mayor McCarty in the city court on charges of petit larceny. Hudson, the railroad detective, has been in the city for several days in vestigating the thefts of coal from the cars of the company. Much coal is stolen and in many instances cars containing freight are broken into and frequently groceries, cases of eggs and like articles are taken. The detective caught Mrs. Henson and Mrs. Smith in the act of taking coal from a car and compelled them to carry it back. He then proceeded to the city hall and swore out affidavits against the women. Warrants for their arrest were given to the chief of police and he found them at thir homes. In the city court they readily ad mitted stealing the coal and attempt ed to justify their acts by a plea that they were without coal and means to buy any and that they had to take it to keep from freezing. The may or In a lecture told them that the township trustee would furnish them with fuel if they were needy and that stenting was never justifiable. Warn ing them that on their next appear ance in court he would enforce pun ishment for this offense he per mitted them to go. The record shows that judgment was withheld. The Smith woman is about sixty years old. Mrs. Henson is a woman of forty-five or fifty. In apprving of the thefts of coal from the company the rilroad de tective says they have come to be a source of great annoyance to the railroad as well as a heavy loss and that strenuous efforts to break up the practice will be made. This city, in particular, hoe claims, seems to be peculiarly ambicted with cantaleves. Mayor McCarty has promised him the cooperation of the local officers in atoppin the #tenling,
Newspaper Details
Washington Gazette
Washington, Indiana, US
Sat, Jan 29, 1910
Page 1
Full Page
Clipped by
Anonymous
TX, USA 11 Jun 2026
Other Publications Near Washington, Indiana
Washington Gazette and Herald
Washington Gazette
Washington Weekly Gazette
Washington Democrat
Daviess County Democrat
