96 Ind. 143 | Ind. | 1883
Lead Opinion
The appellees’ complaint alleges that the board of commissioners of Vigo county, on the petition of the city of Terre Haute, ordered lands belonging to them to be annexed to the city, and charges that this judgment was void, because, to borrow the language of the pleading, “ no petition was ever presented to the board of commissioners for the annexation of the territory described in the order of
It is also averred that “ no notice by publication of the intention to present said petition to said board of commissioners, was given thirty days'previous to December 5th, 1872.” By the law in force when the annexation proceedings were had, it was provided that the “ council shall give thirty days’ notice, by publication in some newspaper of the city, of the intended petition ” (1 R. S. 1876, p. 311), and if the complaint had directly charged that no notice at all had been given, it would perhaps have been good, because, as the proceeding affected the personal and private rights of the appellees, they were entitled to the notice, and this not having been given the board of commissioners did not acquire jurisdiction of the person. Town of Cicero v. Williamson, supra. Notice in some form in such cases is required, and a statute not providing for it is probably unconstitutional. Campbell v. Dwiggins, 83 Ind. 473. However this may be, it' is clear that the complaint is insufficient. For aught that appears more than thirty days’ notice may have been given. The presumption is in favor of the acts of public officers, and, until the contrary is shown, it must be presumed that they have done their
Judgment reversed.
Rehearing
On Petition fob a Eeheabing.
In the brief of the appellees the question for our decision was thus stated: “ The only question presented by this record is, was the complaint subject to demurrer ? ” This we accepted as a correct statement, and fully considered the question presented, and we certainly gave the appellees no cause for complaint in acting upon their own .statement.
It is said in the brief on the petition for rehearing, that we were in error in stating that the complaint averred that an order of the board of commissioners was made annexing lands to the city of Terre Haute. That we were not in error is apparent from the following statement of the complaint: “'And plaintiffs say that the board of commissioners of Vigo county, pretending to act under sections 86 and 87 of the law of 1867, made an order annexing to the city of Terre Haute certain territory, in said order described, in twelve parcels,” and this is followed by a description of the lands ordered annexed. But if this extract does not sufficiently show that we were right, then the following surely does: “And plaintiffs say that said pretended annexation of land to the city of ‘Terre Haute is illegal and void, and that the acts of said city
The theory on which the pleading is founded shows clearly that we correctly read the complaint, for the theory is that because all the lands were not annexed none were, the theory is not that the lands of the parties described in the order were not ordered to be annexed, but that other -lands described were not annexed.
We find in the concluding part of the complaint this clause: “And that the defendants be perpetually enjoined from attempting further to assess the same under the order of said board,” and the context clearly shows that the word “ same ” refers to the lands of the appellees, described in the order.
Counsel are right in saying that we did not mean to hold that the lands not within a city could be taxed by the municipal authorities, but they are wrong in assuming that we did not correctly construe their complaint.
The pleading shows that a petition was presented to the board of commissioners, and that it described the lands of the appellees and other lands, and this petition was sufficient to invoke the jurisdiction of the board in the particular case, and this was all that was necessary to protect the proceed-r ings against a collateral attack. The statute gives the board general jurisdiction over the subject, and the petition called that jurisdiction into exercise in this instance. The fact that the petition may not have been sufficient in form or sub
Tbe petition in this case showed that the general subject was one over which the commissioners had jurisdiction, and as it described real estate it showed that the case was one in which that general power was properly called into action. The failure to accurately describe the land may have been a
It is now well established, although there has been some contrariety of opinion upon the subject, that in all cases where the commissioners’court has jurisdiction of the general subject, and that jurisdiction is brought into exercise in the particular instance, the judgment will be sustained as against all collateral attacks. There are strong reasons for the rule, as shown by the cases heretofore referred to. Another reason may here bo given, and that is this, the public have a right to the prompt and speedy settlement of questions affecting public interests, and by requiring one who is dissatisfied with the judgment of the board of commissioners to appeal this result is secured. Agaiu, if there are errors or irregularities, advantage should be taken of them before rights have been acquired by the public or by private individuals. It is far better in such a case as the present, that property owners should be required to appeal and avail themselves of all objections that may exist, rather than wait until the municipal authorities have laid out streets and made public improvements, and then obtain an injunction. Still another reason supports our now established rule, and that reason is that the requirement that persons aggrieved by the judgment of the inferior tribunal shall appeal gives stability to the judgments of the commissioners, represses litigation and enables those who desire to act upon the judgments of the commissioners to act with knowledge and confidence.
Petition overruled.
