E. Abney v. Jasper Clark, Members of Board of Supervisors

• Decision Date: 11 May 1893
• Citation: 55 N.W. 6,87 Iowa 727
• Parties: E. ABNEY et al., Appellants, v. JASPER CLARK et al., MEMBERS OF BOARD OF SUPERVISORS, Appellees
• Court: Iowa Supreme Court

55 N.W. 6

87 Iowa 727

E. ABNEY et al., Appellants, v. JASPER CLARK et al., MEMBERS OF BOARD OF SUPERVISORS, Appellees

Supreme Court of Iowa, Des Moines

May 11, 1893

Appeal from Calhoun District Court.--HON. CHARLES D. GOLDSMITH Judge.

CERTIORARI to the defendants, as members of the board of supervisors of Calhoun county. It appears from the petition and return to the writ that the board of supervisors made its final order establishing a highway along a line on which the plaintiffs were landowners, and were entitled to damages; that the proceedings of the board are regular up to the appointment of appraisers to appraise the damages upon the claims filed that the report of the commissioners to review and report upon the expediency of establishing the highway was filed October 21, 1889, and the eighth day of February, 1890, was properly fixed as the time for filing objections and claims for damages. The time of appointing the appraisers does not definitely appear, but they met, in pursuance to the order of appointment, and made return of their doings, on the thirtieth day of January, 1890. One of the plaintiffs had before the appointment of the appraisers, filed its claim for one thousand dollars damages; and the other two, theirs for five hundred dollars each. Each was allowed by the appraisers fifty dollars, and the final order establishing the road was made November 3, 1890. The district court sustained a motion to dismiss the petition on the ground that the petition and the return to the writ show the plaintiffs to be entitled to no relief whatever. From the order of the court the plaintiffs appeal.

Reversed.

M. H. Baugh, for appellants.

E. C. Stevenson, County Attorney, for appellees.

OPINION

GRANGER, J.

I.

It will be observed that the appraisers were appointed and made their appraisement before the day fixed for the claims to be filed, February 8, 1890. It is admitted because of an undenied averment in the petition, that the plaintiffs had no notice or knowledge of the appointment of the appraisers, or their doings, until after the final order establishing the road, but they did have notice of the time fixed for filing claims. By Code, section 940, it is provided: "When claims for damages are filed, and on the day appointed for filing the same, the auditor must appoint three suitable and disinterested electors of the county as appraisers to view the ground on the day fixed by him, and report upon the amount of damages sustained by the claimants. Such report shall be made and filed in the auditor's office within thirty days after the day they are appointed." It is insisted that the appointment of the appraisers before the day fixed by the statute renders the proceedings void, the claim being that the fact of such appointment is jurisdictional. On the other hand, it is claimed that, inasmuch as the claims were filed when the appointment was made, the day of the appointment is not material, and would not affect the proceedings.

Statutes fixing the time and manner for officers in the discharge of their duties are often held to be directory, but it is not so held when the time and manner of doing the act is fixed with reference to the rights and opportunities of third persons. The statute is specific,--that when claims are filed the auditor must appoint the appraisers on the day appointed for the filing of the same. The language certainly favors a particular time for making the appointment. By a previous section of the statute, notice of the time fixed for the filing of claims must be served on the owners of land abutting on the proposed highway. The law fixes that as the day for appointing the appraisers. The requirements of the law that claimants shall have notice of the time of filing claims, and that the appraisers must be appointed on that day, are the equivalent of a requirement that claimants shall have notice of the time of the appointment. The duties of the appraisers have a special reference to the rights of claimants for damages. These claimants have a direct interest in the appointment, and it seems to us reasonable to say that the time for the appointment is fixed at the time claims must be filed, that is, on the day for filing, that claimants, by virtue of their notice thereof, may be present, to be heard, if they desire. Without so specific a statute, such a rule would accord with a high sense of natural justice, and has the sanction of many adjudications, more or less direct, where private interests are involved.

The statute formerly was that commissioners to view and locate highways must be appointed on some of the regular days of the sessions of the board of supervisors, or at some time then fixed. An appointment at another time was held invalid, and, speaking of the time fixed for the appointment this court, in State v. Kimball, 23 Iowa 531, used the following language: "This is to enable those who may be affected by the proposed road to be present,...