Board of Commissioners of Crawford County v. State ex rel. Chenoweth

• Decision Date: 15 November 1921
• Docket Number: 23,710
• Citation: 132 N.E. 680,191 Ind. 335
• Parties: Board of Commissioners of Crawford County v. State of Indiana, ex rel. Chenoweth, et al
• Court: Indiana Supreme Court

132 N.E. 680

191 Ind. 335

Board of Commissioners of Crawford County v. State of Indiana, ex rel. Chenoweth, et al

No. 23,710

Supreme Court of Indiana

November 15, 1921

From Clark Circuit Court; James W. Fortune, Judge.

Action by the State of Indiana on the relation of James S. Chenoweth and others, against the Board of Commissioners of Crawford county. From a judgment for relators, the defendant appeals.

Affirmed.

John H Luckett, C. W. Cook and Burdette C. Lutz, for appellant.

Bayless Harvey and Jonas G. Howard, for appellees.

Ewbank J. Myers, J., absent.

OPINION

Ewbank, J.

The appellee relators, as contractors for the construction of the improvement, brought an action of mandamus to compel the appellant to issue and sell certain bonds to pay for the construction of a gravel road improvement on and near the line dividing Crawford county from Orange and Washington counties, pursuant to an order of the joint boards of commissioners of the three counties, made in June, 1913, in a proceeding for that purpose. The sufficiency of the complaint is not questioned.

The appellant filed an answer of three paragraphs of which the first paragraph was a general denial, and the second alleged that of the two freeholders and an engineer appointed as viewers only one of the freeholders and the engineer signed the viewers' report, on which the subsequent proceedings establishing the proposed improvement were based, and asserting that because of that fact all acts done by the joint boards of commissioners after the filing of that report, in the way of approving the report, establishing the road, ordering it improved, letting the contract and ordering the issue and sale of bonds to pay for it, were void. Overruling a demurrer to the second paragraph of the answer is assigned as error.

If there were only two viewers and one of them made a report finding that the proposed improvement would be of public utility, and stating how and of what it should be constructed, the fact that the other viewer refused also to sign it would not deprive the board of commissioners of jurisdiction. The proper procedure would be to refer the matter back to such viewers for further consideration, or to appoint other viewers; but jurisdiction would not be lost. Metsker v. Whitsell (1914), 181 Ind. 126, 103 N.E. 1078.

The averment in the second paragraph of the answer that after the report was signed "further proceedings were taken ordering and establishing said proposed road" does not even negative the possibility that those "further proceedings" may have been taken properly and without error. But however irregular the proceedings might have been, and however erroneous they would have been found if they had been reviewed by an appeal, a judgment of the board of commissioners in a matter of which it fully acquired jurisdiction, both as to the subject-matter and the parties, and of which it never lost jurisdiction, is not open to collateral attack because of errors and irregularities. Miller v. Porter (1880), 71 Ind. 521; Featherston v. Small (1881), 77 Ind. 143; Argo v. Barthand (1881), 80 Ind. 63; Rassier v. Grimmer (1892), 130 Ind. 219, 28 N.E. 866, 29 N.E. 918; Bailey v. Board, etc. (1914), 57 Ind.App. 285, 107 N.E. 38; Waugh v. Board, etc. (1917), 64 Ind.App. 123, 115 N.E. 356.

Moreover, the statute (§§ 7740-7752 Burns 1914, Acts 1907 p. 363), providing for the improvement of highways along county lines by the joint action of the boards of commissioners of the several counties affected, under which this proceeding was instituted, provides (§ 5, supra) that the members of the boards, in joint session, shall appoint two disinterested freeholders * * *, and a competent surveyor or engineer as viewers * * *." And it does not require the surveyor or engineer to give bond, or to qualify in any other manner than by taking the oath required of the freeholders. § 7744 Burns 1914, Acts 1907 p. 363. Under the provisions of this statute the three viewers were of equal rank, and a report signed by two of them was sufficient even if one of those signing it was appointed as an engineer.

The cases which have construed the language of the general highway statute (§§ 7715, 7716 Burns 1914, §§ 66, 67, Acts 1905 p. 521), providing that a highway petition shall be referred to "a competent civil engineer * * * and two viewers," and that the engineer shall give a $ 5000 bond, as not making the engineer one of the viewers, are not in point. See, Griffin v. Pearce (1918), 187 Ind. 287, 119 N.E. 8, and authorities cited.

At the request of appellant the court made a special finding of facts, and stated conclusions of law thereon, to each of which conclusions the appellant excepted. The court found that a proper petition for the improvement in question was duly filed with the board of commissioners of Orange county Indiana, and that the proper steps were taken in the matter of giving notice, and that pursuant to the notices given, the members of the boards of commissioners of the three counties of Crawford, Orange and Washington met in joint session at the auditor's office of Orange county, and that the required action ordering the improvement of the highway along and near the county line between...