191 Ind. 335 | Ind. | 1921
The appellee relators, as contractors for the construction of the improvement, brought an action of mandamus to compel the appellant to issue and sell certain bonds to pay for the construction of a gravel road improvement on and near the line dividing Crawford county from Orange and Washington counties, pursuant to an order of the joint boards of commissioners of the three counties, made in June, 1913, in a proceeding for that purpose. . The sufficiency of the complaint is not questioned.
The appellant filed an answer of three paragraphs of which the first paragraph was a general denial, and the second alleged that of the two freeholders and an engineer appointed as viewers only one of the freeholders and the engineer signed the viewers’ report, on which the súbsequent proceedings establishing the proposed improvement were based, and asserting that because of that fact all acts done by the joint boards of commissioners after the filing of that report, in the way of approving the report, establishing the road, ordering it improved, letting the contract and ordering the issue and sale of bonds to pay for it, were void. Overruling a demurrer to the second paragraph of the answer is assigned as error.
The cases which have construed the language of the general highway statute (§§7715, 7716 Burns 1914, §§66, 67, Acts 1905 p. 521), providing that a highway petition shall be referred to “a competent civil eng1' aoer * * * and two viewers,” and that the engineer shall give a $5000 bond, as not making the engineer ene of the viewers, are not in point. See, Griffin v. Pearce (1918), 187 Ind. 287, 119 N. E. 8, and authorities cited.
At the request of appellant the court made a special finding of facts, and stated conclusions of law thereon, to each of which conclusions the appellant excepted. The court found that a proper petition for the improvement in question was duly filed with the board of commissioners of Orange county, Indiana, and that the proper steps were taken in the matter of giving notLe, and that pursuant to the notices given, the members of the boards of commissioners of the three counties of Crawford, Orange and Washington met in joint session at the auditor’s office of Orange county, and that the required action ordering the improvement of the highway along and near the county line between those counties, so as to connect two highways already improved, and the issue of bonds to pay for its construction, was duly taken by unanimous vote of the commissioners of all three of the counties, the predecessors in office of the present members of the appellant board being present and voting for all that was done; that the auditor of
The statute under which this proceeding was instituted provides as follows: “It shall be the duty of the county auditor of the county where said petition is filed to attend all joint sessions provided for in this act, and he shall enter at length all proceedings of such joint session on the commissioners’ record of his county without delay, and shall at once make out true and certified copies of such records and transmit a copy thereof to the auditor of each county interested, who shall at once copy the same on the commissioners’ record of his county.” §7744 Burns 1914, §5, Acts 1907 p. 363. And the statute prescribing the duties of the county auditor provides as follows: “The auditor, by virtue of his office, shall be clerk of the board of county commissioners of his county, and shall keep an accurate record of all the corporate proceedings of such board. He shall preserve the documents, books, records, maps and
And another section of the statute also provides as follows: “Such commissioners shall cause to be recorded, in a book kept for that purpose, their proceedings and determinations touching .all matters properly cognizable before them.” §5987 Bums 1914, §5746-R. S. 1881. .
The judgment is affirmed.