164 Ind. 258 | Ind. | 1905
Appellees filed a petition in the commissioners’ court of Tipton county praying for the con
Rouls, Jones, and other appellants, being landowners whose lands were assessed for the construction of the ditch, appealed from the above order to the circuit court. On appeal, Rouls and other appellants renewed and tendered for filing their written objections to the petition and report of the viewers, demanding that the report of the viewers be rejected, and the proceeding dismissed for the following, among other, reasons: Because 4,600 feet of the ditch described in the petition as an open drain, and proposed to be tiled, is not now and never was an open drain constructed under the laws of Indiana, and is not in or over the line of any old ditch or drain, and, as to said 4,600 feet, the drain described in the petition, and as laid off in the report of the
In support of their right to file the plea, appellants accompanied it with an affidavit which tended to show that they were prevented from timely appearing and presenting their objections before, the board of commissioners by the fraudulent conduct of the petitioners and their attorney. The presentation of the affidavit rests upon the doctrine that a default secured by the wrongful act, or fraud of the adversary, or misconduct of the board, forms an exception to the general rule that in appeals from boards of commissioners such questions only as were presented in the court below can be litigated in the circuit court. See Breitweiser v. Fuhrman (1882), 88 Ind. 28; Munson v. Blake (1885), 101 Ind. 78.
1. While we consider the question raised by the affidavit touching the excusable absence of appellants at the time the report was acted upon by the board as one of substance, yet, in the view we have taken of the case, its decision becomes unnecessary. At the bottom of the case lies the question of jurisdiction of the subject-matter. If the commissioners’ court had no such jurisdiction, then all time spent in the consideration of other questions is wasted. Commissioners’ courts have limited powers, and only such jurisdiction as is expressly Conferred by statute, or necessarily implied to enable them to carry out the powers expressly granted.
2. The statute upon which this proceeding is grounded clearly contemplates the doing of a single thing, namely, the tiling of public open drains. The title of the act of 1901, supra, which serves as an index to the subject-matter,'is as follows: “An act providing for the tiling of public open
3. Boards of commissioners have no authority to construct new or original drains, by tiling, under this act. Their power is clearly and unequivocally limited to public drains heretofore constructed under some law of this State. In this respect the statute is so plain as to forbid of construction» The commissioners having no power to direct the construction of a tile-drain in new territory, if they undertook to do so in this case, all their acts and proceedings in reference thereto were unauthorized. If the board acted without authority, their appointment of viewers, and their action upon the viewers’ report, were unwarranted. Strayer v. Taylor (1904), 163 Ind. 230; Royse v. Evansville, etc., R. Co. (1903), 160 Ind. 592.
4. In this case want of jimsdietion did not appear upon the face of the petition or report, and could only be raised by some sort of plea. Wilcox v. Moudy (1882), 82 Ind. 219.
5. Whether the appellants’ remonstrance specifically setting forth a want of jurisdiction of the subject-matter was timely or not before the commissioners, when renewed, on appeal, and supported by affidavit,' it disclosed sufficient substance to impose upon the circuit court the duty of enter-
Other questions are discussed which are not likely to arise again, and are therefore not decided.
Judgment reversed, and cause remanded, with instructions to overrule appellees’ objection to the filing of appellants’ objection to the petition and report of the viewers, and for further proceedings not inconsistent with this opinion.