158 Ind. 332 | Ind. | 1902
Such proceedings were had before the board of commissioners of Benton county for the establishment of a free gravel road under the act of March 3, 1811, §6855 et seq. Burns 1901, as resulted in the confirmation by the commissioners, on June 22, 1891, of the apportionment of the road’s cost upon the lands benefited thereby. From this final order approving and confirming the assessments persons representing about eighty-five per cent, of the assessments appealed to the circuit court. The persons representing the other fifteen per cent, of the assessments, though properly notified of the various proceedings^ made no appearance of any kind before the commissioners, and did. not join in the appeal. In the circuit court a summons was duly issued and served on all parties assessed, who had hot appealed, for more than ten days before the term, but they made no appearance in the circuit court, and took no part in the proceedings on appeal, so far as the record discloses. In the circuit court, upon satisfactory proof that the petition, at the time the report of the viewers apportioning the cost of the improvement was acted upon by the commissioners, did not contain the names of a majority of resident landowners, nor of the owners of a majority of acres reported as benefited, the assessment against the land of each party to the appeal was held to be void, and a judgment was rendered canceling the same. Kirsch v. Braun, 153
This action is brought by the appellee against the appellant Smythe, auditor of Benton county, to procure a peremptory writ of mandate to compel Smythe, as such auditor, to place upon the proper tax duplicate the assessments made by the commissioners which were unappealed from, the relator being the owner of certain due and unpaid bonds issued by the commissioners upon the faith and basis of the assessments ordered. The appellants, other than the auditor, being the persons interested in the assessments unappealed from, appeared to the action, and upon their request were admitted as parties defendant, and permitted to file a combination pleading, which is termed a several answer of the intervening defendants, and a return for the auditor to the alternative writ. Appellee filed two demurrers to said pleading, one for insufficiency of facts to constitute a return for the auditor, and the other for want of facts to constitute a defense for the intervening defendants. Both demurrers were sustained, and upon the refusal of the auditor and each of the other defendants to plead further the court rendered judgment ordering that a peremptory writ of mandate issue, commanding the auditor to place the assessments set out in the petition upon the tax duplicate. The errors assigned and presented call in question the action of the court in sustaining the demurrer to each the auditor’s return and answer of the intervening defendants.
Deeming it to be to the interest of the litigants, we pass the technical questions as to the sufficiency of the plead
1. As to the first point, the purpose in view in bringing the non-appealing parties into the circuit court by summons is not disclosed by the record nor by the appellants’ brief. The summons gave the circuit court jurisdiction over the persons of the appellants, but it is clear that it did not give
2. It has been repeatedly held by this court that assessments made by boards of commissioners for the construction of free gravel roads are separate and distinct judgments against the several parcels of land assessed, and that a successful appeal on the identical grounds here alleged by some of the persons affected does not vacate the assessments against the lands of those not appealing. There being no community of interest in such assessments, and they being in the nature of separate judgments against the property of the several persons affected, those persons who feel aggrieved thereby must, each for himself, make such defense as he chooses. The law affords each person assessed
In this ease the petition was sufficient upon its face. Whether, at the time of making the assessments, it was subscribed by the requisite number of landowners to give the commissioners authority to make them was a question which the board was required to ascertain and settle. Having adjudicated this question after notice to the appellants, and without remonstrance or objection by them, they must be held to be conclusively bound thereby. Osborne v. Sutton, 108 Ind. 443; Jackson v. State, 104 Ind. 516.
But it is argued that, since it appears that eighty-five per cent, of the assessments were annulled by the circuit court, leaving but fifteen per cent, available for the construction of the road, it is thus affirmatively shown that the
Was it sufficient as a return for the auditor ? The duties of a county auditor are purely ministerial. He has no judicial function; no right to decide what he shall do or leave undone. The law specifically directs the things he shall do, and grants him no power to change, modify, or omit any of the acts commanded of him. It is his duty to record the proceedings of the board of commissioners and, in free gravel road cases, to enter upon the record the report of the committee appointed to apportion the cost of the improvement, showing how the estimated expense has been apportioned upon the lands ordered to be assessed as the same has been confirmed by the commissioners; and he shall place the assessments so made upon a special duplicate, to be provided by him at the expense of the county. §6860 Burns 1901. Under this statute, when the commissioners have considered the report, and decided that the apportionment of the expense has been fairly and equitably made, and have confirmed the same, it eo instanti becomes the plain and unequivocal duty of the auditor to spread said report upon the record, and to place said assessments, not stayed by judicial process, upon a duplicate for collection. What defense the property owners may have to the
Judgment affirmed.
Jordan, C. J., doubts.