Helms v. Bell
| Decision Date | 27 November 1900 |
| Docket Number | 18,857 |
| Citation | 58 N.E. 707,155 Ind. 502 |
| Parties | Helms et al. v. Bell et al |
| Court | Indiana Supreme Court |
From the Hamilton Circuit Court.
Affirmed.
I. W Christian, W. S. Christian, R. K. Kane, T. E. Kane, T. J Kane, F. E. Gavin, T. P. Davis and J. L. Gavin, for appellants.
R. R Stephenson, Geo. Shirts and W. R. Fertig, for appellees.
Appellant Helms and eleven others filed a petition before the board of commissioners of Hamilton county for the location of a highway over the lands of appellees. Viewers were appointed who reported in favor of the utility of the road; whereupon, appellees filed a remonstrance claiming damages, and also denying the public utility of the way. Reviewers were appointed who made their report finding the road to be of public utility, and assessing damages in favor of each of the appellees, which report of the reviewers was approved by the commissioners, who, thereupon caused a record of said road to be made, and entered an order that the same be opened and kept in repair; but the board found as a part the final order, that said highway was not of sufficient public importance or utility to justify the payment of the damages assessed out of the county treasury, and as a condition precedent to the opening of said road ordered that the petitioners pay the damages assessed. More than thirty days after the entry of the final order establishing said highway, the petitioners procured the payment into the county treasury, for the use of appellees, the remonstrators, the damages that had been assessed in their favor, and which they refused and still refuse to accept; whereupon appellant Sturdevant as auditor of the county, upon request of the petitioners, issued to appellant Morgan, as trustee of the township wherein the proposed road is situate, a warrant for the opening of said way, which trustee has delivered the warrant to Brandon as road supervisor of the district.
All the petitioners, the county auditor, township trustee, and road supervisor, are made defendants, and they are claiming and giving out in speeches that they have the right to and will open the way, and require the appellees to remove their fences, to their great and irreparable damage, etc.
These facts were held sufficient to entitle the plaintiffs, the remonstrators, to injunction, enjoining the defendants from opening said highway, and, the defendants refusing to answer, judgment was rendered against them upon their demurrer. The single question is did the court err in overruling the demurrer to the complaint?
The proceeding is a collateral attack upon what purports to be a judgment of the board of commissioners, and, to be successful, it must appear that the judgment is absolutely void. Adams v. Harrington, 114 Ind. 66, 71, 14 N.E. 603; City of Indianapolis v. Consumers, etc., Co., 140 Ind. 246, 253, 39 N.E. 943; Davis v. Clements, 148 Ind. 605, 607, 47 N.E. 1056; Gold v. Pittsburgh, etc., Co., 153 Ind. 232, 241, 53 N.E. 285; Winslow v. Green, ante, 368.
The enforcement of a void judgment may be enjoined, and "a judgment is void if the thing essential to its validity is not apparent upon the face of the record, and it may be treated as a nullity by all persons, in collateral, as well as direct attacks." Hudson v. Voreis, 134 Ind. 642, 34 N.E. 503; Strong v. Makeever, 102 Ind. 578, 581, 1 N.E. 502; City of Terre Haute v. Evansville, etc., Co., 149 Ind. 174, 176, 46 N.E. 77.
It is firmly settled that the commissioners' court is one of special and limited jurisdiction; that it has no power but that conferred by statute, and this it must employ in the mode prescribed. Doctor v. Hartman, 74 Ind. 221.
It has power to establish highways, but the conditions and manner of its exercise are clearly defined by the statutes and must be substantially observed, or the proceeding becomes a nullity. Section 6755 Burns 1894 provides that in the order for laying out of a highway the commissioners shall specify the width, and a failure to do so renders the judgment void. Hudson v. Voreis, supra; White v. Conover, 5 Blackf. 462.
In a proceeding under § 6762 Burns 1894, to have a road that has been used for twenty years ascertained, described, and entered of record, a judgment of the commissioners failing to adjudge the user for twenty years is void as being a departure from the command of the statute. Strong v. Makeever, supra.
A sale of county property by the commissioners under notice, as provided by § 4248 R. S. 1881, which fails to state the terms of sale, is void for noncompliance with the statute. Platter v. Board, etc., 103 Ind. 360, 376, 2 N.E. 544.
In the procedure for the location of a highway, when a petition properly signed and properly supported by notice is presented to the commissioners, the action they shall take upon the petition is clearly pointed out by the statute. They shall appoint viewers to inquire into and report to the court whether the proposed way will be of public utility. If the report of the viewers is in the negative, a judgment of denial must be entered, and that is the end of the proceeding; in such case there can be neither a review nor appeal to the...
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