Bailey v. Driver

• Citation: 107 N.E. 38,57 Ind.App. 285
• Decision Date: 08 December 1914
• Docket Number: No. 8905.,8905.
• Parties: BAILEY v. DRIVER et al., Board of Com'rs of Sullivan County.
• Court: Court of Appeals of Indiana

57 Ind.App. 285

107 N.E. 38

BAILEY

v.DRIVER et al., Board of Com'rs of Sullivan County.

No. 8905.

Appellate Court of Indiana, Division No. 1.

Dec. 8, 1914.

Appeal from Circuit Court, Sullivan County; Wm. H. Bridwell, Judge.

Injunction by Richard L. Bailey against John Driver and others, Board of Commissioners of Sullivan County, Indiana. Demurrer to complaint sustained, and plaintiff appeals. Affirmed.

Walter F. Wood, of Sullivan, for appellant. Hunt & Gambill and Buff & Stratton, all of Sullivan, for appellees.

SHEA, J.

This action was commenced in the Sullivan circuit court to enjoin the board of commissioners of Sullivan county from letting a contract for the building of an asphalt country road. It is charged, in substance, in the complaint: That appellant (plaintiff) is a resident taxpayer of the city of Sullivan and Hamilton township, Sullivan county, Ind. That appellees are the duly elected county commissioners of Sullivan county. That there is located in the city of Sullivan, Ind., a street running north and south, known as Section street, the south end of which for a distance of about 1,100 feet is the boundary line between said city and Hamilton township; one-half of the street being in the city and one-half in the township. From the south terminus of the street there is a public highway running south into Hamilton township, a distance of about 220 feet, where said highway intersects with a gravel road running east and west. On March 10, 1911, William H. Eaton and others filed their petition with the auditor of said county asking the board of county commissioners to improve the highway running north and south, and said Section street to Donaldson street in said city, a distance of 2,000 feet from the intersection of said highway, by grading, graveling, paving with stone, or other paving or macadamizing material. That notice was published in the Sullivan Democrat, a weekly newspaper published in the city of Sullivan, that said petition would be heard by the board of commissioners April 3, 1911, which notice was all that was ever given by publication to the residents and taxpayers of Sullivan and Hamilton township relating to the improvement of the street and public highway. On the second day of the May term, 1911, said board adjudged the petition sufficient and appointed an engineer and two viewers to report on the improvement, who on May 26, 1911, filed their report and estimate of the improvement. That in addition to grading and improving said street and highway by paving with gravel or rock the engineer and viewers reported that concrete curbing should be constructed along both sides of the street and highway at an estimated cost of $2,000. That 8,889 gallons of asphalt should be placed on said improvement at an estimated cost of $1,777.80, and that the improvement should be rolled and dressed at an estimated cost of $150. That said cement curbing and asphalt was to be used on the part of the improvement in Hamilton township which is not within the corporate limits of any city or town, as well as the part of the city of Sullivan. On May 26, 1911, said board examined the report and estimate and unlawfully ordered the improvement made in accordance therewith, and ordered bids for the improvement to be advertised for. That no notice has ever been given the residents and taxpayers of the city of Sullivan or Hamilton township that the improvement would include cement curbing and asphalt street and roadbed. That these are street paving materials and not such as are usually employed in the construction of country roads. That bids for said improvement were advertised for at the estimated cost July 5, 1911, and unless the commissioners are enjoined the contract will be let on said estimate. That said road and street do not require such an expensive improvement, and if same is made it will be a great injury to the taxpayers of Sullivan and Hamilton township. That said highway and street should be graveled or rocked as prayed in the petition at an expense not to exceed $1,600. A demurrer to the complaint was sustained, and, appellant refusing to plead further, the court rendered judgment for appellee.

The reasons assigned in support of appellee's demurrer are: (1) The court has no jurisdiction of the person of defendants nor the subject-matter of the action. (2) The complaint does not state facts sufficient to constitute a cause of action.

As a memorandum of the alleged defects of the complaint under the second cause for demurrer, it is set out: (1) The complaint discloses that legal notice was given appellant and all other taxpayers of said county of the pendency of the petition to improve the highway described in the complaint before the board of commissioners of said county. (2) Said complaint discloses that this is a collateral attack upon the judgment of the board of commissioners of Sullivan county, and is not an appeal from the decision of the board of commissioners.

[1] It is very earnestly urged on behalf of appellant that error was committed by the trial court in sustaining a demurrer to the complaint because the action of the board of commissioners was in violation of the Acts of 1909, p. 353, and the proviso of section 2 found on page 356 thereof, which reads as follows:

“Provided, that the materials used in road construction under the provisions of this act outside of cities and towns shall be such materials as are usually employed in the construction of country roads,...