Cason v. Harrison

• Decision Date: 08 November 1893
• Docket Number: 16,357
• Citation: 35 N.E. 268,135 Ind. 330
• Parties: Cason v. Harrison, Treasurer of Boone County
• Court: Indiana Supreme Court

35 N.E. 268

135 Ind. 330

Cason v. Harrison, Treasurer of Boone County

No. 16,357

Supreme Court of Indiana

November 8, 1893

From the Boone Circuit Court.

Judgment affirmed.

P. H Dutch, for appellant.

O. P Mahan, for appellee.

OPINION

Dailey, J.

This is an action to restrain the treasurer of Boone county, Indiana from collecting a certain assessment for cost, against the lands of the appellant, for the construction of a free gravel road, established under the acts of the Legislature of 1877.

The complaint is in two paragraphs, and is too lengthy to be copied into this opinion.

Among the many averments contained in the amended first paragraph of the complaint, it shows that a petition and bond were filed in the commissioners' court; that the same were acted upon and considered sufficient; that engineers and viewers were appointed; that they were to, and did, meet at a certain time and examine the proposed road, and did make and file with the commissioners a report; that the report was approved, the final sufficiency of the petition determined and adjudicated by the board, the road established, a committee appointed to apportion the cost on the various tracts of land; that said committee made a report, and it included the apportionment of the amount on appellant's land; that said report was approved, and the various assessments confirmed and ordered placed on the tax duplicate.

It then alleges that within the proper time an appeal was taken, by six persons affected, to the Boone Circuit Court; that these six persons were remonstrators below with the plaintiff; that they took the appeal for themselves and others who might desire to receive the benefits thereof; that before the apportionment of the cost, the contract for the construction of the road was let, and and a sale of six thousand dollars of bonds was ordered; that this order was made before the board had made its final order for the construction of the road; that in the circuit court a trial was had, and the court found that the order for the construction of the gravel road, and all subsequent proceedings thereunder, were void and of no effect, for the reason that a majority of all the resident land-owners and a majority of all the acres of land that had been assessed and that had been adjudged to have been benefited by the construction of said road had not subscribed the petition for said improvement to be made, and the order and proceedings were annulled by the court and declared to be void, and ordered set aside and and held for naught as to the persons appealing; that the assessments against the lands of each of them were void and of no effect, and that said proceedings for the construction of said Thorntown and Reese Mills free gravel road were void and without authority of law.

It is also alleged that the petition for the construction of the gravel road had not been, in fact, subscribed by a majority of the acres assessed.

Appellant insists that the allegation incorporated into this paragraph, that the court adjudged that "the proceedings authorizing the construction" of the road "were void, and without authority of law," brings the case within the rule declared in Fleener v. Claman, Treas., 112 Ind. 288, 14 N.E. 76.

Inasmuch as the complaint is not set out in the opinion cited and relied upon, we are not able to state whether it is analogous to the case under consideration, in which the complaint shows that the board had acquired complete jurisdiction of the persons and subject-matter before acting in the proceedings complained of. If the opinion there expressed is as expansive as appellant contends, and is to guide us, it would logically follow that the court below erred in sustaining the demurrer to this paragraph of the complaint, but, if so construed, it would be out of line with all previous utterances of this court, and with all subsequent decisions, where the same, or similar, questions have been presented, and we would have to hold it modified so as to conform to other rulings.

The theory of the appellant, as it appears in this paragraph, is that six freeholders, other than the appellant, having appealed to the circuit court from the order establishing the road, and said court having found that the petition was not signed by a majority of the resident land-owners, and was not represented by a majority of the acres, and that the order was void, no rights could be founded upon it, and all subsequent proceedings, as to all parties affected, were invalid for want of jurisdiction.

We can not give our assent to so broad a contention. This being a collateral attack, the appellant, in order to succeed, must show that the proceedings of the board, in making the assessments, are coram non judice. This is elementary.

In Strieb v. Cox, Treas., 111 Ind. 299, 12 N.E. 481 (304), the court said: "Under the averments of the third paragraph of appellees' joint answer, the Board of Commissioners of Grant county had full and complete jurisdiction of the free gravel road described in the petition, mentioned in such paragraph of the answer. The presentation of this petition to such board * * * as stated * * * called into exercise its jurisdiction, and required such board to determine as to the sufficiency of such petition, both in form and substance, whether or not it was signed by the requisite number of land-holders, whose lands would be assessed for the cost of the proposed improvement, and every other fact, precedent or concurrent, necessary to the granting of the prayer of such petition. It was shown, also, by the averments of such third paragraph * * * that proper notices were given, as required by the statute, and appellant had personal knowledge * * * of the pendency of such petition and of all the proceedings and orders of the county board had thereon; that he appeared before the board and remonstrated against and resisted such proceedings and orders; that the assessments on his lands, whereof he complains in this action, were confirmed by the county board over his written remonstrances, and that he failed to appeal from such proceedings, orders and assessments within the time allowed by law. Upon this showing made by appellees * * * we are of opinion that the assessments on appellant's real estate, for the construction of the free gravel road named * * * are valid, binding and conclusive, and can not be impeached collaterally."

The court below had jurisdiction of both the subjectmatter and the appellant, under the provisions of sections 5091 and 5092, R. S. 1881.

If the...