167 Ind. 48 | Ind. | 1906
A proceeding was commenced to construct a gravel road under the act of 1903 (Acts 1903, p. 255). This act provides that upon the presentation to the board of commissioners of a petition signed by a majority of the resident landholders of the county whose lands abut upon the proposed improvement, stating therein the kind of improvement prayed for, and the points between which the same is asked, such board, if satisfied that due notice of such application has been given by posting notices in three public places in the neighborhood of such highway at least ten days before the meeting of the board at which such petition is to be presented, shall appoint three disinterested freeholders of the county as viewers and a competent engineer to proceed, upon a day to be fixed by the commissioners, to examine, view, lay out or straighten such road as in their judgment public utility and convenience require. The county auditor shall notify the viewers and engineer of the time and place of their meeting, and such viewers and engineer, upon actual view, shall determine what lands are benefited or damaged by' the proposed improvement, and if they find such improvement will be of public utility or convenience, and that the costs, expenses and damages will be less than the benefits to the land within two miles of the improvement, they shall then, upon actual view of all the lands within two miles of the improvement, apportion the estimated costs, expenses and damages upon all the lands within said two miles that are benefited, according to the benefits to be derived therefrom. (Section two.) As soon as they have performed their duties, the v.iewers and engineer shall report their doings to the commissioners and file the same with the auditor, which report shall show the public utility of the improvement, an estimate of the costs and expenses, the damages assessed to the several tracts of land, the benefits to each forty acres, or less, thereof, and give a description of the work proposed, the grades, drains,
This action was commenced in the Tipton Circuit Court by divers landowners, whose lands were assessed for the improvement, to set aside the contract, made between the superintendent appointed by the county commissioners (section nine) and appellees for the construction of said gravel road, and to enjoin said superintendent from issuing the assessment certificate required by the statute to be issued to the several persons assessed. There is no question raised upon the pleadings.
The complaint consists of five paragraphs. The first, third and fourth count upon fraud in letting the contract for construction for a price .largely in excess of the total benefits assessed, in tampering with the viewers’ report after it had been approved by the board, and that the order of the board was void because it did not define the width, nor the kind and extent of the improvement; the second and fifth, that the superintendent, upon the same facts pleaded in the other paragraphs, was about to issue certificates of assessment against the plaintiffs’ lands for a sum forty per cent in excess of the benefits assessed thereto.
The answer was a general denial. The court found the facts specially and stated conclusions of law thereon in favor of the defendants.
Judging the theory of the case more from the points and argument of counsel for appellants, than from the averments of the complaint, it appears that appellants rest their claim for relief upon the ground that the proceedings before the board of commissioners and the appointment of a superintendent of construction were void for want of jurisdiction.
It is conceded by appellants that if the proceedings and orders of the board herein assailed are not absolutely void, then a collateral attack by injunction is not available. The fundamental question, therefore, for decision, involves the
“Roley Smith, G. R.
Petition No. 41, May 18, 1903.
June 1, 1903.
Proof of notice filed. Petition filed showing petition signed by majority of resident abutting landowners of the county. Petition granted as prayed for, and George Potter, Samuel McReynolds and Tinker Neal appointed viewers and Alonzo Scott surveyor. Ordered to meet at„the office of the county surveyor on June 26, 1903, and qualify and make view and make report.”
In the above minutes it is shown that the first steps taken by the board in the Roley Smith gravel road, No. 41, was on June 1, 1903, when proof of notice was filed and a petition signed by a majority of abutting landowners of the county was presented, considered" and granted, as
So, assuming, without deciding, that the .record of the commissioners does not of itself show jurisdiction, it is, as a memorandum by the court, sufficient beyond controversy, in support of the judgment, indirectly attacked, to warrant recourse to the files in the case and to the papers required by law to contain the missing facts, if any, necessary to jurisdiction.
Turning then to the bill of exceptions, it very clearly appears that the petition presented to the board on June 1, 1903, in Roley Smith gravel road, No. 41, and the notice of such presentation, and the proof thereof, are, in all respects, in conformity to the statute. There is, then, no doubt of the jurisdiction of the board, or of its authority to appoint viewers and a surveyor to view the route, and report upon the practicability of the improvement.
The board’s order-book entry, after reciting briefly a trial and adverse finding against remonstrators, proceeds: “The board now finds for the petitioners, and approves the report of the viewers, with the following exception: That in addition to the specifications in said report there shall be two twenty-four-inch sewer tile in grade at Turkey creek bridge.” The board also finds that said improvement is of public utility, and that the cost and damages will not exceed the benefits to be derived therefrom, “and now orders said road constructed, and appoints Roley Smith as superintendent for the construction of said road,” and fixes his salary and bond.
The viewers’ report was spread of record in full in the gravel road record. By this it appears that the viewers having qualified, proceeded to- examine, lay out, and estimate the cost of constructing the gravel road described in the order, and stating that, after a careful and actual view of all the lands within two miles of said proposed road, that they believed would be affected, they located said road, estimated the cost, and found that the construction of said road would be of public utility and convenience, and that the costs and expenses thereof and resulting damages would be less than the benefits to the lands listed by them as benefited, that there would be no damages resulting to any one, and submitted with the report a list of
The report further stated that they found the total benefits to the lands to be affected by the construction of the road was $44,082.15, and the estimated costs and expenses $26,449.29; that they had assessed the estimated costs to the lands they deemed benefited, which estimated costs assessed to each forty acres or less amounted to sixty per cent of the total benefits assessed to the same. A complete list of the lands and assessments was also filed as a part of the report.
Every fact important to the report of the viewers and the judgment of the court was embraced within the limits of the board’s judgment record and the viewers’ report, both of which records were introduced in evidence by appellants. The judgment record recites that “the board approved the viewers’ report, with the following exception: that in addition to the specifications of said report there shall be two twenty-four-inch sewer tile put in the grade at Turkey creek bridge,” following this additional provision of its own with a finding that the work was of public utility, and would cost less than the benefits, and closing the entry with these words: “And now orders said road constructed and appoints Roley Smith as superintendent for the construction.” It is apparent from the amendment made by the board, just quoted, that it was its inten