Ralston v. Beall

• Decision Date: 23 April 1892
• Citation: 30 N.E. 1095,171 Ind. 719
• Parties: RALSTON et al. v. BEALL et al.
• Court: Indiana Supreme Court

171 Ind. 719

30 N.E. 1095

RALSTON et al.

v.BEALL et al.¹

Supreme Court of Indiana.

April 23, 1892.

Appeal from circuit court, Miami county.

Proceeding by petition to the board of county commissioners for the construction of a free gravel road. From an order of the court affirming an order of the county board alllowing Abram I. Beall and other petitioners to withdraw from the petition, and dismissing the same, John Ralston and others appeal. Affirmed.

Rosco Kimple, for appellants. S. D. Carpenter, for appellees.

McBRIDE, J.

At the March, 1882, session of the board of county commissioners of Miami county, a petition was presented to the board, asking for the construction of a free gravel road, under the provisions of the act of March 3, 1877, (Acts 1877, p. 82; Rev. St. 1881, § 5091 et seq.) The petition was signed by the requisite number of qualified persons, and, on the 21st day of June, 1882, all the necessary and proper preliminary steps having been taken, the matter was submitted to the board for final action, under section 5095, supra. The board thereupon made the following finding and order: “And it appearing to the board, by due proof, that a majority of the resident landholders of the county of Miami, whose lands are reported as benefited, and ought to be assessed therefor, have subscribed the petition above specified, asking for such improvement herein reported, and the board, after due consideration thereof, and being fully advised in the premises, find that public utility requires the establishment and construction of such gravel road. Therefore, in consideration of the fact that the law regulating the issuing of bonds for such purpose has been exhausted, it is ordered that said report be continued for further action, at such time as the board may deem expedient.” No further action appears to have been taken in the matter until the March, 1888, session of the board, when a remonstrance was filed, remonstrating against the construction of the road, and certain of the petitioners asked leave to withdraw their names from the petition. There was then a further continuance to the June, 1888, session, when certain of the petitioners asked the board to make a final order for the construction of the road. Without recounting the intermediate steps, it is sufficient to say that at a special session of the board held in August, 1888, the board permitted a large number of names to be withdrawn from the petition, over the objection of the remaining petitioners. Thereupon, it appearing that without the names withdrawn the petition was not signed by the required number of qualified persons, the petition was dismissed. On appeal to the circuit court this action of the board was sustained.

The only question presented by the record and argued by counsel grows out of the action of the court in permitting the withdrawal of the names of petitioners from the petition, and the consequent dismissal of the cause. Counsel for the appellants insist: (1) That after the finding by the board of June 21, 1882, it was too late for any petitioner to withdraw; and (2) that, if they were entitled to withdraw after that time, such withdrawal could not result in defeating the jurisdiction of the cause.

Under the statute in question, the board of county commissioners could assume jurisdiction of a proceeding of this character upon the filing of a petition, signed by five or more of the landholders whose lands would be assessed for the cost of the improvement, with proper bond, and could appoint viewers and an engineer to view and lay out the road, etc. Section 5092, Rev. St. 1881. They, however, had no jurisdiction to make an order for the improvement until after the petition had been signed by a majority of the resident landholders of the county whose lands the viewers reported were benefited and ought to be assessed, and also the owners of a majority of the whole number of acres of all lands which they reported were benefited and ought to be assessed. Section 5095, Id. Whether the petition is or is not signed by the requisite number of qualified persons remains an open question until the board considers and passes upon the report of the viewers. At any time before the board makes its finding names may be added to or...