123 Ind. 471 | Ind. | 1890
There are some thirty appellants in this case, and they brought this action against the appellee, as treasurer of Monroe county, to restrain the collection of an assessment for the construction of a free gravel road.
The complaint is in three paragraphs. The appellee demurred to each paragraph of the complaint, for the .reason that neither paragraph of the complaint states facts sufficient to constitute a cause of action. The court sustained appellee’s demurrer, and appellants excepted and refused to amend, and the court rendered judgment on the demurrer for the appellee.
The first paragraph of the complaint alleges that the appellee is the duly elected and acting treasurer of Monroe county; that a petition was filed for the construction of a turnpike, known as the “Wylie Pike,” describing the route
It is insisted by counsel for appellants that the appeal taken from the order of the board for the construction of the pike vacated all proceedings had by the board up to that time, and suspended all further proceedings; and that all
It has been held by this court that no appeal lies from the order of the board for the construction of the road. Tomlinson v. Peters, 120 Ind. 237. There being no right of appeal from such order, the jurisdiction of the board of commissioners could not be taken away by an appeal. By the allegations of the complaint it only appears that two persons appealed from the order of the board. It has been held by this court that an appeal taken by two persons, as in this case, would not affect the jurisdiction of the board or the validity of the proceedings as to those not appealing. Stipp v. Claman, post, p. 532.
The second paragraph alleges the same facts as to the filing of the petition, appointment of viewers, filing of assessments and placing the same on the duplicate, and that the appellee was attempting and threatening to collect the assessments. It is further alleged that the county of Monroe contains a population of more than ten and less than thirty thousand, and that the board of commissioners are prohibited by law from remaining in regular session to exceed nine days in said county, and that the June session of said board expired on the 11th day of June, 1884; that said board met afterwards, on the 23d day of June, 1884, in regular session; that said board did not give any public notice of said meeting on said 23d day of June, and on said day said board ordered, adjudged and decreed that said improvement be made as prayed for, and that the lands
The validity of this paragraph of the complaint depends upon the fact as to whether or not the board of commissioners had the power to make the order which they did on the 23d day of June, 1884, when they ordered the construction of the road and appointed viewers to assess and apportion the assessments.
The fair inference and conclusions to be drawn from the facts pleaded are, that the board of commissioners met in. special session upon that day, without being notified to meet
The averments in the complaint do not controvert the fact that all proper notices were given as required by the statute to give the board of commissioners jurisdiction of the subject-matter and of the parties, or that any fact , or element was lacking to make the proceedings legal if the orders and adjudications of the board had been made at a time when the board was in legal session, with power to make the order. Nor is it shown by the averments of the complaint that the board did anything beyond what they had authority to do under the statute governing the construction of free turnpikes.
The question presented has been in effect decided by this court. In the case of White v. Fleming, 114 Ind. 560, on p. 574, the court say: “ In the second paragraph of his complaint, as we have seen, plaintiff alleged that the members of the county board came together at the auditor’s office on the day named, of their own motion, to settle with the outgoing township trustees, without any notice, oral or written, from any officer authorized by law to give notice of the special session. Special sessions of the county boards may be called by certain county officers, in a specified order, £ Whenever the public interests require it.’ Section 5737, R. S. 1881. The notice of special sessions, provided for in the statute, is a notice not to the public, but to the individual members of the board.”
In the case from which we quote, it was alleged that the board voluntarily came together in special session on the 14th day of April to settle with the outgoing trustees, and remained in session until the 17th day of April, and the court further say: “Weare of opinion that the second paragraph of complaint fails to show that the board
It is evident that the board of commissioners having been in session on the 23d day of June, 1884, and made an order relating to the construction of said turnpike, the board having jurisdiction of the parties and the subject-matter of the. action, their orders were prima facie valid, and not subject to a collateral attack as in this case. If the validity of this order had been contested in an appeal taken from the final order and judgment of the board, a different question would be presented for our consideration. The board of commissioners passed upon their right to sit and transact business, and made an order in the case, and such order so made can not be attacked in a collateral proceeding.
The third paragraph presents no additional question. The demurrer was properly sustained to each paragraph of complaint.
Judgment affirmed, with costs.
Berkshire, J., dissents.