Jasper County Democrat, Volume 6, Number 47, Rensselaer, Jasper County, 27 February 1904 — COUNTY IS LIABLE. [ARTICLE]

COUNTY IS LIABLE.

Judge Rabb Renders Decision In Ditch Assessment Case. Judge Rabb decided a very interesting case in the Jasper Circuit Court last Friday, wherein Albert J. Bellows as trustee of Carpenter township, was plaintiff and the board of Commissioners of Jasper county, was defendant. The matter involved in this litigation grew out of the construction of the Gallagher Ditch in 1896, under the five mile act, wherein the statute specifically authorizes benefits to pnblio highways to he assessed againat the county. This ditch was constructed through Carpenter and Jordan townships and the viewers in their report reported benefits to public highways in Carpenter and Jordan in the sum of over S3OO. This report and assessment against Jasper county was approved by the Board of Commissioners and the ditch ordered established. One of the provisions of this law was to the effect that bonds could be issued to pay for the construction of the improvement. The Auditor and Board pro-rated the assessments so assessed against Jaojier county, to the townships of Carpenter and Jordan, and they contended that it was agreed by the trustees of the respective townships during the year 1896 that this should be done.

Afterwards, these were placed against Carpenter and Jordan, respectively, and during the years 1897, 1900, 1901, 1902 and 1903, Carpenter township paid of this assessment $262.34. Mr. Bellows, as trustee ot Carpenter township, consulted Foltz &, Spitler in regard to the legality of these assessments and on their advice suit was advised to be brought to recover the assessments so paid by his township. A claim was filed by Mr. Bellows in the fall of 1903 with the Auditor, demanding the re-payment of said $262-34, which claim was presented to the Board of Commissioners and the Board after due consideration refused to allow the claim on the advice of the county attorney, other than about $35.00 going to that portion of the assessment to the free gravel road in Carpenter township, and refused the residue of the claim. This amount the trustee declined to* accept and filed his appeal bond for appeal. The papers and record of the proceedings of the Board of Commissioners were filed in the circuit court and the matter presented to Judge Rabb on Thursday and Friday of last week. It was the contention of the defendant, that the statute contemplated assessments against the townships through which the ditch was located and not against the county; that the highways affected were township highways and not county highways, other than the free gravel road. Judge Rabb in deciding the case decided that the assessment was legally made against Jasper county under the law; that the county was bound by the record as made and approved by the Board of Commissioners; that whether or not the highways were county or township highways could not be raised in this action; that whether any notice was given the county on the first bearing could not be raised, for the record showed that the Board itself was present and approved and confirmed the assessments; that it was a debt of the county and not a debt of Carpenter township; that the agents or officers of Jasper county had no'legal authority to transfer the debt of the county to Carpenter township, even though the trustee of the township consented thereto; that the consent of the public officers as of the character of the County Commissioners and township trustees could not hind the township nor the county; and that such acts can be reviewed and determined in the proper action. The court in his decision gave Mr. Bellows judgment for the full amount of $262.34. Mr. Bellows in waging this action has not only benefitteahis township in recovering judgment for $262.34 but has procured a decision of one of the ablest Judges iu the State as to the meaning of the five mile ditch law concerning assessments against the county and not against the township, as there is now a proceeding known as the Drainage of the Iroquois River under the five mile act, wherein the question as to the assessments against the county and against the townships may arise. However, this decision of Judge Rabb will no doubt practically settle the legal phase of this question.