188 Ind. 1 | Ind. | 1918
— This appeal involves proceedings to establish and improve a highway leading from the south end of Tenth street, at the south corporation line of the town of Noblesville, Hamilton county, to a line drawn east and west through the center of the right of way of the Lake Erie and Western Railway, where the right of way is crossed by the Noblesville and Indianapolis free gravel road; and also involves proceedings to improve said free gravel road from said last-named point south, the aggregate length of the highways affected and described being less than three miles.
Said opinion held that the circuit court erred in not considering the challenge of Washington’s competency, reversed the judgment, and directed further proceedings not inconsistent with the law of the case thus announced. This left open, not only the question as to Washington’s competency, but the question whether the facts justified Washington’s vote in any particular matter.
Upon a trial by the circuit court of this present appeal, facts were specially found showing that Washington was at the time of the former proceedings disqualified, and that he remained incompetent; but it was also expressly found that his associate commissioners voted,
As found by the court, the issues made before the board after the cause was remanded were as follows: Petitioners filed a supplemental petition, asking that new viewers and an engineer be appointed, as one of the former viewers was deceased, the other, Stultz, was a candidate for election as commissioner (he was later elected and afterwards acted in this proceeding as a commissioner), and the term of the surveyor, who had been appointed engineer, had expired. This petition was not objected to and was granted. This was proper, and no issue was made or determined on this supplemental petition. Petitioners also filed a motion to consolidate the two proceedings relating to the respective roads described. Said motion also asked the board to determine the competency of Washington, alleging that the facts asserted as creating incompetency did not exist.
The board, by accepting Washington’s vote, either overruled the challenge of Washington, or declined to
5. No other issues were made before the board. No other issues can be tried by the circuit court on appeal, nor presented here. Aetna Life Ins. Co. v. Jones (1909), 173 Ind. 149, 89 N. E. 871; George v. Amos (1909), 173 Ind. 599, 601, 602, 90 N. E. 606; Fisher v. Blumhardt (1914), 182 Ind. 603, 605, 107 N. E. 466.
We thus find as to the issues before the board: (1) There was an issue whether Washington was incompetent, and, if so, whether the board could act without his vote. (2) There was no objection, hence no issue before the board or court, as to the appointment of new viewers or engineer. (3) There was no objection to the motion to consolidate, and hence no issue as to this
The facts found upon which these two conclusions, depend are: That the petition which prayed that a road be established from Noblesville to the Lake Erie and Western Railway asked that it be established as sixty feet in width. The other petition was that an
The report provided a pavement eighteen feet in width, with a five-foot earthen strip on each side; that the pavement be separated into concrete blocks eighteen feet wide and not less than twenty-five feet long; that expansion joints be provided between each two blocks, all said joints to be filled with felt or-prepared paper, and the ends of the blocks, at the expansion joints, be protected by metal plates. The .report detailed the treatment and proportions of screened sand, small and large hard and durable gravel, and other hard broken stone and of cement, and provided that each of such blocks, over fills of a designated depth, should be reinforced by metal mesh, and specified the thickness of the pavement.
The statute does not contemplate that the petitioners shall be skilled engineers, nor that the members of the board shall be skilled engineers; and therefore provides for the appointment of a skilled engineer. The petitioners describe generally what they desire and recommend. §7713 Burns 1914, Acts 1905 p. 521, §64. That part of the petition is simply a recommendation. Hall v. McDonald (1908), 171 Ind. 9, 16, 85 N. E. 707. The viewers, advised by an engineer, describe specifically what is proper and necessary in the construction of a road of the character covered by the general description in the petition. This is an engineering proposition, and practically necessary, as the report is the specification upon which bids are invited. §7717 Burns 1914, Acts 1905 p. 521, §68. It is for the board to finally accept or reject the recommendations of the viewers and engineer.
In this proceeding the petition asked that the broken stone be “combined and firmly held together with a durable binder.” This court determined in Metsker v. Whitsell, supra, in speaking of the petitions and roads here in controversy, that: “It is manifest that the legislature had a purpose in view in providing for the use of ‘combinations’ of stone and gravel, and it is scarcely to be doubted that such purpose was to prevent, or mitigate,” disintegration, “and, in securing such result,
The statute names no criterion for determining whether cement, as a binder, shall be' poured over broken stone and gravel placed on the roadbed and allowed to trickle to needed points for contact, or whether the cement, as a binder, shall be thoroughly mixed with the broken stone and gravel before the same is placed on the roadbed. The statute names no criterion for determining whether the one will construct a bound road, or the other a concrete road. The statute, for that matter, defines no difference between roads constructed by the two methods above mentioned; the statute does not say that the jurisdiction of the board to construct
The court’s fifth conclusion is that the board had no jurisdiction to order said road constructed under said last report, for that it was not shown, so as to enable this court to find, that the proper steps were taken to give the board jurisdiction to make such order, and therefore the circuit court has no jurisdiction to make any order for such improvements. We assume that this conclusion does not refer to a lack of showing of proper steps to give the board jurisdiction of the petition and proceedings thereunder. The petition was lawful. The three and only contestants voluntarily appeared, and have urged their resistance for over seven years, and at
The reference may be to steps taken before the board, or by the board, as to the last report of the viewers, alleged to recommend matters so far beyond the scope of {he petition that the board’s approval thereof was beyond its jurisdiction. We have found that the board had jurisdiction of the cause and the parties, and therefore on appeal the circuit court had jurisdiction. We have also determined that the character of the road ordered was within the board’s jurisdiction.
The final conclusion is that the judgment of the court should be in favor of the remonstrators for their costs, and that the cause should be remanded to the board for proceedings in accord, with the mandate in Metsker v. Whitsell, supra, and with the judgment of the circuit court. The direction that the board proceed according to the said mandate of this court is not material, for the reason that all proceedings must be consistent with said mandate. In view of our determination that the circuit court was in error in each of its other conclusions, the mandate that the board proceed in accord therewith was erroneous. The exception to this conclusion should have been sustained.
In view of the conclusions we have reached herein, no'ruling need be made on other questions presented by appellants.
The judgment of the circuit court is reversed, and the cause remanded, -with instructions that the court restate its conclusions of law in accord with this opinion, remand the cause to the board of commissioners, with mandate that the board proceed in accord with its final order, that the auditor advertise for bids under.the report of the viewers and engineer. Judgment against
Note. — Reported in 119 N. E. 865. Subsequent appeal, law of the case, 84 L. R. A. 321. See under (5) 37 Cyc 136.