64 Ind. App. 123 | Ind. Ct. App. | 1917
This is an appeal from a judgment in favor of appellees in an action, brought against them by appellant, in which he sought to have a certain judgment of appellee board of commissioners ordering a free gravel road improvement declared void and appellees enjoined from going ahead with the improvement therein ordered.
The complaint originally filed was superseded by an amended complaint in two paragraphs, the second of which was withdrawn, leaving an amended first paragraph, which will be hereinafter referred to as the complaint. A demurrer to this complaint was sustained and this ruling is here assigned as error and relied on for reversal. The complaint sets out in detail and in consecutive order the substance, or an exact copy, of the respective pleadings and files in said case, and the record of the proceedings had before said board. We indicate only those averments which disclose its theory and the infirmities which, appellant claims, make it vulnerable to the attack made upon it in the trial court. The averments which indicate its theory are to the following effect, viz.: Appellant is a taxpayer and voter of the township in which said highway is located, and is the
The facts disclosed by the complaint affecting such jurisdictional questions are, substantially, as follows: On May 5, 1913, Albert D. Thomas and others, claiming to be voters and freeholders of Union township, said county, filed with the auditor of said county, their petition for the improvement of a certain highway in said county. The petition, omitting caption and unnecessary detail in description, arid names of signers, is as follows:
“To the Honorable Board * * *
“The undersigned petitioners * * * show * * * that they are all resident freeholders and voters of Union Township * * * that * * * (they) desire the improvement of a certain highway in said Township, described as follows, to wit:
“Beginning in the center of the Crawfordsville and Greencastle free gravel road * * * running thence west approximately three hundred * * * feet along and upon the Crawfordsville and
“ * * * Petitioners respectfully ask your Honorable Body to improve said * * * ' highway by grading, draining and paving with stone, gravel, cement or other road paving material.
“ * * * (They) further represent and show that said highway herein asked for to be improved connects at each end thereof with a county free gravel road. We recommend that the width of said highway be * * * forty * * * feet * * *.
“We * * * ask that an order be made for the improvement of said highway without first submitting the question of said improvement to the voters of said Township.”
(Here follow the names of the signers — seventy-four in all.) •
Said auditor endorsed the petition for hearing on June 3, 1913, and caused to be published and posted a notice setting forth a copy of the petition, which notice was as follows:
“Notice of presentation to the Board of Commissioners of Montgomery County, of Indiana, of a petition praying for the improvement of a public highway in Union Township, said county and state.
“Notice is hereby given to the freeholders and voters of Union Township, Montgomery County, Indiana, that Albert D. Thomas et al., has' filed in the office of the Auditor of Montgomery County, Indiana, their petition addressed to the Board of Commissioners of said County, asking that a certain highway therein set out be graded, drained and paved with stone, gravel or other road paving material, and which petition is in the words and figures following, to wit: (The above petition is here set out.)
“You are further notified that I have designated
“In witness whereof, I have hereunto set my hand and affixed my official seal this 6th day of May, 1913. “Bennett B. Engle,
“Auditor of Montgomery County, Indiana.”
It is then averred that such notice was published on the 9th and 16th days of May, 1913, in the Crawfordsville Review, a daily newspaper; that the sheriff caused a copy of said notice to be posted at three livery stables in Crawfordsville, and one at the door of the courthouse in said city; that such was the only notice published or posted or in any way given of said proceedings; that a copy of said notice, together with a purported proof of publication thereof, was placed among the files of said proceedings in the office of the auditor, but such notice was not in fact filed and the purported proof thereof was not in fact sworn to; that the jurat of the auditor or of any other person was not attached thereto, and no proof of the publication was in fact made; that the purported proof of notice attached to the copy of said notice placed on file in the auditor’s office was a partially printed and partially written statement in the words and figures following:
“proof of publication.
“State of Indiana, Montgomery County “Montgomery Circuit Court.
“B. F. Merrell of lawful age, being duly sworn on his oath, says that he is manager of The Crawforsville Review, a newspaper of general circulation, printed and published in the county aforesaid, and that the notice of which the attached is a true copy, was duly published in said paper for 2 weeks successively, the first insertion of which was on the 9th day of May, 1913, and the last on the 16th day of May, 1913. “B. F. Merrell.
“Subscribed and sworn to before me this..... day of ................, 191
“And said petitioners now file with said Auditor * * * and with said Board of Commissioners * * * and present to said Board of Commissioners proof of the publication and posting of the notice of the pendency of said petition, and of the time when the same would be presented to said Board * * * said proof setting forth a copy of said petition, which proof consists of several affidavits accompanied by an exact copy of said notice, which said notice reads in the words and figures as follows, to wit:
“ ‘Proof of Publication “ ‘State of Indiana, Montgomery County.
“ ‘B. T. Merrell of lawful age, being duly sworn on his oath says that he is manager of the Crawfordsville Review, a newspaper of general circulation, printed and published in the county aforesaid, and that the notice, of which the attached is a true copy and marked Exhibit A was duly published for two weeks successively, the first insertion of which was on the 9th day of May, 1913, and the last on the 16th day of May, 1913.
“B. T. Merrell.
“‘Subscribed and sworn to before me this 28th day of May, 1913. “Bennett B. Engle,
“Auditor of Montgomery County.’ ”
“And said petitioners by their attorneys, * * * now present to said Board of Commissioners their petition herein, a copy of which is set forth in'said notice showing that there is an established highway in said Union Township along and over the following described route, to-wit :
“For description of route see description in ‘Exhibit A.’
“That said beginning point of said public highway is in the center of the Crawfordsville and Greencastle free gravel road at the N. E. corner of S. 7, T. 18, R..4, W., and that the terminus thereof is at the half section line of S. 24, on an improved free gravel road, in Union Township, * * * and said petition prays that part of said public highway set out in said petition be graded, drained and paved with stone or other paving material. And the said Board of Commissioners having heard the evidence introduced and having examined said petition and the endorsements thereon, and being in all things sufficiently advised in the premises, it*130 finds and adjudges that said petition was and is fully signed by fifty or more freeholders and legal voters of said * * * Township * * * that said petition was filed in the office of the Auditor * * * within thirty days of the hearing thereof as designated by an endorsement thereon by * * * said Auditor * * * at the time of the filing thereof.
* * * That said Auditor did thereupon cause to be published in a weekly newspaper of general circulation, printed and published in the English language in said county, and of general circulation in said county, and to be posted in three or more public places within said * * * Township where said part of said highway is located, and one notice to be posted at the Court House door in said County, which notices set forth a copy of said petition and the day upon which the same would be presented to the said Board * * * and the said notice was duly signed by said Auditor * * * and was duly published for two consecutive weeks in two insertions in said newspaper aforesaid, immediately before said day of said hearing * * * and was duly posted as aforesaid fifteen days or more before the day so-designated by said Auditor.
“That notice of said petition and the pendency thereof, and of the day so fixed for the hearing thereof has been duly made, given, published and posted.
“That said petition duly sets forth the beginning, course, termination and a general description of the highway and part thereof proposed to be improved, * * * together with a recommendation of the width * * * and of the character of the improvement to be made.
“And said petition, is hereby deemed, found, and adjudged by the Board * * * to be in due form and sufficient in substance.
“It is further found and adjudged by the board * * * that said petition so filed and presented calls for the improvement of a road less than three miles in length which connects a free gravel road within said * * * Township with another gravel road within said township.
“That said petitioners are entitled to have an order made establishing and ordering the construction of said road and said improvement * * **131 without submitting the question * * * to an election of the voters of said township. * * *
“And the Board finds that more than fifty of the signers * * * are freeholders and legal voters of and in said township and that each and all of said signatures are genuine and that the Board further finds that the matters and things set forth in said ¡petition are true in substance and in fact.”
(Our italics.)
It is then averred, in effect, that said board was without jurisdiction for the reason that no notice of such petition and proceedings was published in a weekly newspaper of general circulation, printed and published in said county; that no notice of any kind was published for two weeks in a daily newspaper, or in any newspaper; that the highway sought to be improved is in fact part of an existing free gravel road in said county, extending from the northern terminus described in the petition, southwesterly for more than fifteen miles to the south line of said county; that the proposed improvement is in fact a portion of such highway less than three miles in length, all in said township and at no place departing from the line of the existing highway; that the southern terminus of the improvement proposed does not in fact connect with an improved free gravel or macadamized road or with a township boundary, or with the corporate limits or 'boundary of a city or town. There are averments that appellant did not learn of these proceedings until long after the order had been made.
In support of his contention that said judgment is void and of no effect, it is' insisted by appellant: (1) That it is shown by the averments of the complaint that the statute requiring two weeks publication in a weekly newspaper was not complied with in that the only notice shown to have been published was published in a daily newspaper, and that the proof of such publication was
In answer to appellant’s contention, appellees insist, in effect: (1) That the objection that the proof of notice, alleged to be the only proof On file in said proceedings, shows upon its face that it was published in a daily newspaper, is obviated by §1346a Burns 1914, Acts 1913 p. 761, which provides, in effect, that in all cases where notice is required in connection with township or county
It follows under all the more recent decisions of the Supreme Court and of this court above cited that said judgment is not subject to the collateral attack here made, and hence, that the demurrer to the complaint was properely sustained. Judgment affirmed.