Dayton Gravel Road Co. v. Board of Commissioners of Tippecanoe County

• Decision Date: 17 May 1892
• Docket Number: 16,503
• Citation: 31 N.E. 363,131 Ind. 584
• Parties: The Dayton Gravel Road Company v. The Board of Commissioners of Tippecanoe County et al
• Court: Indiana Supreme Court

31 N.E. 363

131 Ind. 584

The Dayton Gravel Road Company v. The Board of Commissioners of Tippecanoe County et al

No. 16,503

Supreme Court of Indiana

May 17, 1892

From the Tippecanoe Circuit Court.

Judgment reversed, with directions to overrule the motion of the appellees to dismiss the appeal in this cause, and for further proceedings not inconsistent with this opinion.

A Rice, W. S. Potter, J. R. Coffroth and W. R. Coffroth, for appellant.

J. B Milner, J. M. Lowe, D. P. Vinton and H. H. Vinton, for appellees.

OPINION

Coffey, J.

On the 15th day of October, 1890, certain of the resident freeholders of the townships of Sheffield, Fairfield and Wea in Tippecanoe county, filed with board of commissioners of that county the following petition, namely:

"We, the undersigned, respectfully represent to your honorable board that the Dayton Gravel Road is a toll road, running through and located in the townships of Fairfield, Wea and Sheffield, in said county.

"We further represent that each of the subscribers to this petition is a freeholder and citizen of one of the above named townships, and that each township is herein below set opposite his name.

"The undersigned respectfully petition your honorable board to submit to the voters of the above named townships of Fairfield, Wea and Sheffield, through which said townships said road passes, the question of purchasing said Dayton Gravel Road, and to take the necessary steps provided by law for holding such election for that purpose."

This petition was signed by twenty-eight persons residing in Fairfield township, twenty-five residing in Sheffield, and three residing in Wea. Such proceedings were had upon it as that the road was surveyed, fixing its exact course and distance, and fixing the consideration to be paid for it. The board of commissioners then submitted a proposition to the Dayton Gravel Road Company to purchase the road at the consideration fixed by the viewers sent out by it, which was accepted. Thereupon an order was entered for an election, the election held, and the vote canvassed, resulting in a majority in favor of purchasing the Dayton Gravel Road.

After the result of the election was ascertained, the appellees, Benton Steel, Peter Goldsberry and John R. Bladden, appeared before the board of commissioners and filed a remonstrance against completing the purchase, and the board, after due consideration, sustained the remonstrance, and entered an order refusing to complete the purchase of the appellant's road. This order was entered on the 8th day of February, and the 20th day of the same month an affidavit was filed on behalf of the appellant, and appeal taken to the Tippecanoe Circuit Court. In the circuit court the appellant filed a motion for an order against the appellee, the board of commissioners, requiring it to complete the purchase of the appellant's road, which motion was overruled by the court.

The appellees filed a motion to dismiss the appeal, which was sustained by the court, and the appeal dismissed.

The appeal was dismissed, as stated in a bill of exceptions, for the following reasons:

1st. Because the petition filed by the petitioners before the board of commissioners was insufficient, in this, that it contained no description of the Dayton Gravel Road.

2d. Because there is no description of the gravel road in the order issued to the viewers appointed by the board of commissioners to view and assess the price to be paid for the road.

3d. Because the appellants did not possess the right to appeal.

The appellant assigns as error:

First. That the court erred in overruling its motion for an order on the board of commissioners directing it to issue to the appellant bonds of the county in payment for its toll road.

Second. That the court erred in sustaining the motion of the appellees to dismiss the appeal.

In our opinion the court did not err in overruling the motion of the appellant for an order on the board of commissioners of Tippecanoe county to issue the bonds of the county to it in payment for its toll road. The remonstrance filed before the board sets forth that the appellant had no title to a portion of the road which had been appraised, and the value of which constituted a part of the consideration to be paid for the purchase. If it be true, as alleged in the remonstrance, that there was a want of title to a portion of the road, certainly the board of commissioners, as the agents of those who were to be assessed for the payment of the consideration agreed upon between the board and the appellant, should not be compelled to complete the purchase, and pay for that which could not be conveyed to it. The want of title would, in our opinion, constitute a legal excuse for refusal to complete the purchase. While this issue, tendered by the remonstrance, remained untried and undetermined, the court could not enter an order requiring the board of commissioners to issue to the appellant the bonds of the county in payment for its toll road.

It is earnestly contended by the appellees that the petition above set out is fatally defective in that it contains no description of the toll road, the purchase of which the petitioners desire to make.

In deciding the question here presented, it is important to keep in view the well-known rule that upon appeal from the board of commissioners to the circuit court no questions can be considered except such as were presented and involved in the commissioners' court. Hardy v. McKinney, 107 Ind. 364, 8 N.E. 232; Metty v. Marsh, 124 Ind. 18, 23 N.E. 702.

One exception to this rule is that the question of jurisdiction may be raised in the circuit court though it was not presented to the board of commissioners.

As this matter was not raised before the board the question therefore, for our consideration is as to whether this petition was sufficient to confer jurisdiction on the board of commissioners of Tippecanoe county. As to whether a tribunal has jurisdiction of a general class of cases is to be determined by the law, and as to...