Hobbs v. Bd. of Comm'rs

• Decision Date: 20 December 1888
• Citation: 116 Ind. 376,19 N.E. 186
• Parties: Hobbs et al. v. Board of Commissioners.
• Court: Indiana Supreme Court

116 Ind. 376

19 N.E. 186

Hobbs et al.

v.Board of Commissioners.

Supreme Court of Indiana.

December 20, 1888.

Appeal from circuit court, Clinton county; A. E. Paige, Judge.

Action by De Witt C. Hobbs and others against the board of commissioners of Tipton county and others, to restrain the collection of assessments for a gravel road. Plaintiffs appeal.Joshua Jones and Jas. N. Sims, for appellants. R. B. Beauchamp and S. O. Bayless, for appellees.

Zollars, J.

The board of commissioners established a free gravel road. Assessments in the way of benefits were made upon appellant's lands. They ask that the collection of those assessments shall be enjoined. The action, being for an injunction, is a collateral assault upon the proceedings which resulted in a final order and judgment for the improvement, and the making and confirmation of the assessments. A trial was had below, and resulted in a judgment for costs against appellants. The proceeding for the establishment of the gravel road was instituted and carried to completion before the county board, under article 8, c. 70, Rev. St. 1881, § 5091 et seq. Appellants assail the proceedings before the county board upon the ground, first, that the viewers and surveyor appointed by that board to view, locate, etc., the road, did not meet and take the proper oath on the 22d day of August, 1881, the day named in the notice to them, and fixed by the board. Their contention is that because the viewers and surveyor did not thus meet and take the oath, and call to their assistance two chain-bearers and one marker, and at once proceed to the discharge of their duties, the whole proceeding was and is without legal support, and void. With the legal proposition involved in their contention we need not stop here to deal. It is sufficient here that appellants did not establish, by sufficient competent evidence, that the viewers and surveyors did not meet at the time and place fixed by the board. To sustain their averment that the viewers and surveyor did not thus meet, appellants introduced in evidence the record of the proceedings before the county bord. A part of the record thus introduced was the report of the viewers. In that report the viewers stated, among other things, the following: “In pursuance of a certified copy of said petition, and an order from the said board of commissioners appointing the undersigned as viewers and surveyor of the route and work of said improvement prayed for, said certified copy and said petition, with said order, being delivered to us by the auditor of said county, we, the said viewers and surveyor, did meet on the ------ day of August, 1881, at the auditor's office of said county, at the court-house,” etc. In a collateral attack like this, the recitals in that report fall short of showing that the viewers and surveyor did not meet on the day and at the place fixed by the county board. Indeed, they sufficiently show the opposite. They amount to a statement that, in meeting as the viewers and surveyor did, they followed out the order of the county board,-acted in conformity to it, not only as to place, but also as to the time of meeting. It could hardly be said that they met in pursuance of the order of the board, if they met at a place or at a time different from the place and time named in the order. It is further stated, as will be observed, that they met in 1881, and in the month of August. The leaving of the day of the month blank does not overthrow the other statement that the meeting was in pursuance of-in conformity with-the order of the board. As above observed, appellants are attempting, by a collateral assault, to overthrow the proceedings before the county board. One of the weapons selected by them to accomplish that end is that portion of the report of the viewers above set out. It is insufficient. This court, in all cases, and especially in collateral assaults, must presume in favor of the regularity and validity of the proceedings of the courts of this state, including proceedings before county boards, until the contrary is satisfactorily shown by competent evidence, where evidence for such purpose is admissible. Mathews v. Droud, 114 Ind. 268, 16 N. E. Rep. 599; White v. Fleming, 114 Ind. 560, 16 N. E. Rep. 487; Johns v. State, 104 Ind. 557, 4 N. E. Rep. 153. The above evidence adduced by appellants is not sufficient to break down the presumptions which support the proceedings before the board, and while those presumptions stand, the proceedings cannot fall.

As a further means of showing that the viewers and surveyor did not meet on the day fixed by the board, appellants resorted to oral testimony. That was met by oral testimony adduced by appellees. Considering all of the testimony thus adduced, it tends more strongly to overthrow than to support appellants' contention. We need not decide as to the competency of that testimony. Appellants first resorted to it, and are not in a position now to object to the evidence brought forward by themselves, nor to complain that appellees were allowed to meet them with a like kind of evidence. Hinton v. Whittaker, 101 Ind. 344;Lyon v. Lenon, 106 Ind. 567, 7 N. E. Rep. 311; Lowe v. Ryan, 94 Ind. 450;Meranda v. Spurlin, 100 Ind. 380;Dinwiddie v. State, 103 Ind. 102, 2 N. E. Rep. 290.

Section 5092, Rev. St. 1881, which provides for the appointment of viewers by the county board, also provides that, upon such appointment being made, the county auditor shall notify them of the time and place of their meeting, etc., and shall also give notice, by publication in a newspaper printed in the county, for three consecutive weeks next prior to said meeting; which notice shall state the time and place of said meeting, the kind of improvement asked for, the place of beginning, intermediate points, if any, and the place of termination. That section also provides that, in the first instance, the petition to the county board for a gravel road must be signed by five or more of the land-holders, whose lands will be assessed for the cost of the improvement. Section 5095 provides that, after the return of the report of the viewers, the county board may make an order for the making of the improvement; “but such order shall not be made until a...