191 Ind. 271 | Ind. | 1921
This was an action of mandamus by the appellants to compel the appellees, as constituting the board of commissioners of Washington county, Indiana, to approve the report of the viewers in a proceeding to locate and establish a new highway, and to proceed in the matter, and as an incident thereof, to set aside and disregard an order entered by them as such board, purporting to dismiss the report of the viewers, after they had- filed a report finding that the proposed highway would be of public utility, which order sought to be set aside also purported to continue the highway proceeding to a later term “for proof on petition and posting.” A demurrer to the complaint, as failing to state facts sufficient to constitute a cause of action, was sustained by the circuit court, and appellants excepted, and upon their refusal to plead over or amend, final judgment was rendered against them, from which this appeal was duly perfected. Sustaining the demurrer to the complaint is the only error assigned.
The complaint was in a single paragraph. Besides the formal averments as to the official position of the appellees, and the qualifications of the relators' as petitioners for the highway in question, the complaint alleged facts which may be epitomized as follows: That a sufficient number of properly qualified petitioners, in-
Thus a justice of the peace may be mandated to enter judgment on a verdict or finding, duly made, where the law gives him no power to grant a new trial, Moore v. State, ex rel. (1880), 72 Ind. 358, 360, or where the time within which a new trial might have been granted (§1778 Burns 1914, §1487 R. S. 1881) has elapsed; State, ex rel. v. Engle, supra; State, ex rel. v. Porter, supra, or he may be compelled by mandamus to approve a sufficient appeal bond, if duly tendered after final judgment, within the time allowed, and to grant an appeal. Coats v. State, ex rel., supra; Meek v. State, ex rel., supra.
The statutes which confer the powers upon and define. the duties of the board of commissioners upon the return of such a report by the viewers in a proceeding of- this character read as follows:
“* * * Such viewers, * * * shall proceed to view the highway to be located * * *; and if they shall deem such location, * * * to be of public
“Such viewers, or a majority of them, shall make a report of their proceedings at the ensuing session of the board of commissioners, giving a full description of such location,” etc. §7651 Bums 1914, Acts 1905 p. 521, §3.
“If no objection be made to such proposed highway, * * *, such board shall cause a record thereof to be made, and, in case' of *such location * * *, shall order the highway tc be opened and kept in repair, * * *” §7652 Burns 1914, Acts 1905 p. 521, §4,
“If any person through whose land such highway * * * may pass shall feel aggrieved by reason of such location, * * * such person may, * * *, set forth such grievances by way of remonstrance * * *; and the said board shall thereupon appoint three disinterested freeholders of the county as reviewers * * *.” §7653 Bums 1914, Acts 1905 p. 521, §5.
“Such reviewers shall * * *, proceed to review the proposed highway and assess the damages, if any, which such remonstrator may sustain from such highway being opened * * v * through his lands, and shall report the same to the ensuing session of such board.” §7654 Burns 1914, Acts 1905 p. 521, §6.
“If any freeholder of, and residing in, such county shall remonstrate against the proposed highway * * *, as not being of public utility, other reviewers may be appointed, who shall, * * * make report to such board at its next session, whether, in their opinion, the said highway * * * will be of public utility; * * *.” §7657 Bums 1914, Acts 1905 p. 521, §9.
“If a majority of the reviewers last named report
“Authority is granted to appoint reviewers in two cases, and those cases are especially provided for by sections 19 and 23 (§§7653, 7657 Burns 1914) of the highway law. * * * There are, therefore, but two cases in which authority to set aside the report of the viewers is conferred, and applying the familiar maxim, ‘Ex-pressio mins est exelusio alterius,’ we must hold'that there are no others in'which it can be implied. * * * Many considerations combine in requiring us to hold that the report of the viewers is in all cases to be given effect, * * * the commissioners must take some action upon it; some judgment must be pronounced. * * * The report of the viewers -must be held to stand in the same relation to the board of commissioners as the verdict of the jury to the court, and it is the duty of the commissioners to pronounce judgment upon it, except in the cases where the statute provides differently.” Doctor v. Hartman (1881), 74 Ind. 221.
The complaint stated facts upon which, if established, the appellants would be entitled to a judgment commanding the board of commissioners to proceed in the matter of the proposed new highway from the filing of the viewers’ report, and was therefore sufficient to withstand a demurrer.