Ely v. Bd. of Morgan Co.

• Decision Date: 29 November 1887
• Citation: 14 N.E. 236,112 Ind. 361
• Parties: Ely and others v. Board, Etc., of Morgan Co. and others.
• Court: Indiana Supreme Court

112 Ind. 361

14 N.E. 236

Ely and others

v.Board, Etc., of Morgan Co. and others.

Supreme Court of Indiana.

November 29, 1887.

Appeal from circuit court, Morgan county; Ambrose M. Cunning, Judge.

Baker, Hord & Hendricks and W. S. Shirley, for appellants. Jordan & Matthews, for appellees.

Howk, J.

In this case the only error of which complaint is here made by appellants, the plaintiffs below, is the sustaining of the separate demurrers of the appellees to their complaint herein. The complaint was filed in the court below on the sixteenth day of October, 1886. It was alleged therein by the appellants that on the fifth day of June, 1886, Peter Slaughter and 79 other persons filed a petition with the board of commissioners of Morgan county, praying for the improvement of the public highway, running from the town of Brooklyn in such county to the city of Indianapolis, as such highway then ran by way of the Brooklyn and Waverly gravel road to the Red House, and from such Red House, by way of Landersdale, to the boundary line between the counties of Morgan and Marion, in this state; and praying, further, that such public highway be graded and graveled, and made a free gravel road, under the provisions of an act of the general assembly of this state approved April 8, 1885; that at the time of the filing of said petition with such board a majority of the resident land-owners and land-holders of the county, whose lands were situated within two miles of said proposed improvement, and were liable to be assessed therefor, had not signed such petition, and in fact not more than one-third of the resident land-holders, whose lands were to be assessed for said improvement, as provided in section 2 of the aforesaid act, had signed said petition,-the names and signatures of said Peter Slaughter and said 79 other persons being the only names and signatures attached to said petition; that such board of commissioners, notwithstanding a majority of the land-holders whose lands were situated within two miles of such proposed improvement, and to be assessed therefor, had not signed the petition for said improvement, and when in truth and in fact not more than one-third thereof had signed the same, proceeded without right and without having jurisdiction of such proceedings, at its June term, 1886, and appointed three disinterested freeholders of the county as viewers, and a competent surveyor, to proceed upon a day named by the board to examine, view, lay out, or straighten such road and proposed improvement, and to assess the lands therefor. And appellants further alleged that such viewers and surveyor proceeded, as provided in said act, to view, examine, and lay out said highway, as prayed for, and assess the lands within two miles thereof, for the construction of the same, which assessment aggregated the sum of $9,760; that appellants at no time signed such petition; that the whole number of resident land-holders and land-owners, severally owning lands within two miles of the proposed improvement, and whose lands were to be and had been assessed therefor, were 280; that after the viewers and surveyor had made such assessment, and filed their report thereof with the auditor of such county, notice was given by the auditor for the hearing thereof before such board of commissioners, on the sixteenth day of September, 1886; that on the seventeenth day of September, 1886, such board entered upon its order-book an order that such improvement be made, and confirmed the assessments so made upon the lands aforesaid in the aggregate sum of $9,760, which order remained in force and unrevoked; that after making such order the county board appointed appellee Pearce superintendent of the work and improvement; that appellee Pearce had given notice to let out the work for such improvement, and was letting such work with the view of making the improvement under the order of the county board, intending to issue certificates to contractors to collect such assessments of said land-owners and appellants. And appellants averred that, at and before the time the county board made and entered upon its order-book such order for said improvement, and confirmed such assessments so made as aforesaid, such board was notified and informed by a portion of such land holders and owners that a majority of the resident land holders and owners, whose lands were within two miles of the proposed improvement, and had been assessed therefor, had not signed a petition praying the county board for such improvement; but with such notice and information, in utter disregard of the rights of appellants and other land-holders, and in violation of the provisions of sections 2 and 5 of the aforesaid act, the county board made such order for said improvement, and confirmed said assessments as aforesaid, and appointed such superintendent, and ordered him to proceed with such work; that the taxes assessed against appellants' lands, within two miles of the proposed improvement, aggregated the sum of $1,000, and were liens and clouds upon their titles to such lands, and, in like manner, the lands of all the land-holders whose lands were within two miles of the proposed improvement, and had been assessed therefor. Wherefore, etc.

The act approved April 8, 1885, whereof mention is made in appellants' complaint herein, the substance of which we have given, is entitled “An act concerning gravel and macadamized roads.” Acts 1885, p. 162. The act contains twenty sections, the last of which (section 20) reads as follows: “This act is not intended to repeal any law now in force for the construction of gravel and macadamized roads.” At the time of the passage, approval, and taking effect of the above entitled act of April 8, 1885, the laws in force “for the construction of gravel and macadamized roads” were an act approved March 3, 1877, entitled “An act authorizing boards of county commissioners to construct gravel, macadamized, or paved roads, upon petition of a majority of resident land-owners along and adjacent to the line of any road,” etc., and acts subsequently passed amendatory thereof or supplemental thereto. Sections 5091-5114, Rev. St. 1881; Acts 1883, p. 121. From the law in force for the construction of gravel and macadamized roads, on and before the eighth day of April, 1885, the above-entitled act then approved differs in some very material and important particulars. What the effect of this difference must be, in any case of direct and positive conflict between the provisions of the older law and those of the later act, we need not inquire nor attempt to determine in the cause now before us. It will suffice to say in this connection that in Robinson v. Rippey, 111 Ind. 112, 12 N. E. Rep. 141, in view of the provisions of section 20, above quoted, of the latter act, it was held by this...