Hull v. Bd. of Com'rs of La Porte Cnty., 24227.

• Docket Nº: No. 24227.
• Citation: 195 Ind. 150, 143 N.E. 589
• Case Date: April 22, 1924
• Court: Supreme Court of Indiana

195 Ind. 150
143 N.E. 589

HULL et al.
v.
BOARD OF COM'RS OF LA PORTE COUNTY et al.

No. 24227.^*

Supreme Court of Indiana.

April 22, 1924.

Appeal from Superior Court, St. Joseph County; Chester R. Montgomery, Judge.

Mandamus by the State, on the relation of Stephen D. Flynn against the Board of Commissioners of the County of La Porte and others, in which Harvey Hull and others intervened as defendants. From a judgment overruling demurrers of intervening defendants to the complaint and sustaining plaintiff's demurrers to affirmative paragraphs of the answer, intervening defendants appeal. Affirmed.

Earl Rowley, L. Darrow, and Ralph U. Smith, all of La Porte, for appellants.

Andrew J. Hickey, Norman F. Wolfe, and John B. Dilworth, all of La Porte, and S. J. Crumpacker, of South Bend, for appellees.

[143 N.E. 590]

WILLOUGHBY, J.

This was an action commenced by the state of Indiana, on relation of Stephen D. Flynn, to compel by mandate the issuance and execution of $125,000 of bonds of the county of La Porte, under and by authority of the County Unit Road Law, the suit being brought against the board of commissioners of La Porte county and the individual members of said board.

The board of commissioners demurred to the complaint, alleging insufficiency of facts, which demurrer was overruled and exceptions taken. The commissioners then filed answer in general denial and two affirmative paragraphs of answer setting up portions of the commissioners' records and alleging action by the board of commissioners whereby they canceled and rescinded the contract to appellee and the order for the bond issue, and also that the state board of tax commissioners had set aside its order approving the bonds and made an order refusing such approval.

The appellee demurred separately to the second and third paragraphs of answer, which demurrers were sustained, and then the following proceedings were had as appears from the order book entry in said cause:

“And thereupon the first paragraph of answer in general denial, heretofore filed herein on behalf of the board of commissioners of the county of La Porte and the individual members thereof, the principal defendants, is withdrawn by counsel, and the said board of commissioners of the county of La Porte, and the individual members thereof, refuse to plead further to the complaint herein, and elect to abide the ruling of the court heretofore made sustaining the demurrers to the second and third paragraphs of answer interposed by them.

And the defendants, the board of commissioners of the county of La Porte, and the individual members thereof, and the intervening defendants, Harvey Hull et al. failing and refusing to answer further and electing to stand on their said answers and abiding the ruling of the court on the demurrers thereto, judgment is now rendered in favor of the plaintiff against the principal defendants and intervening defendants upon the demurrers.

It is therefore, considered, adjudged and ordered and decreed by the court that the board of commissioners of the county of La Porte, Indiana, and the individual members comprising the same, do execute, sign and turn over to the county treasurer of La Porte county, Indiana, to be sold in all respects as provided by law, $125,000 of county unit road bonds, for the construction of a highway in La Porte county, Indiana, established in a proceeding before the board of commissioners of the county of La Porte, Indiana, upon the petition of L. J. Gross et al., as provided in an order of the board of commissioners of the county of La Porte entered on the 19th day of May, 1921, and that the relator recover his costs herein taxed at - dollars of and from the board of commissioners of the county of La Porte. ***”

After judgment the intervening defendants, Harvey Hull et al., prayed an appeal to the Supreme Court of Indiana, and the appellants have assigned and rely upon the following errors for reversal of the judgment: (1) The court erred in overruling appellants' demurrer to plaintiff's complaint. (2) The court erred in sustaining appellee Flynn's demurrer to appellants' second paragraph of answer. (3) The court erred in sustaining appellee Flynn's demurrer to the appellants' third paragraph of answer.

[1] Was the complaint sufficient? The complaint recites that the plaintiff is the holder of the contract for the construction of the highway known as the L. J. Gross road in La Porte county, Ind. It shows that the petition, signed by 50 or more freeholders and voters of said county, was filed on the 31st day of March, 1919, in the office of the auditor of La Porte county, Ind. The auditor indorsed, at the time of filing of the petition, on said petition that it would be presented to the board of commissioners on the 22d day of April, 1919, and notice was published and posted as required by the statute.

On the 22d of April, 1919, proof of publication of the notice in the La Porte Argus, published in La Porte county, was made, a copy of which notice is set out in the complaint. The notice contained a statement that the petition would be heard on the 22d day of April, 1919, in the county of La Porte, Ind. An affidavit was filed showing proof of publication. Also proof of posting of notices at least ten days before the date set for hearing was made in every township in La Porte county and at the door of the courthouse and a copy of such notice is set out. It shows that the notices were posted more than ten days prior to 22d day of April, 1919, and that they were posted by the deputy sheriff of La Porte county, Ind.

The complaint also recites that no taxpayer, person, or corporation appeared to file objections to said petition, and the board heard evidence and made a finding that legal notice had been made and posted according to law and that the said petition is sufficient in form and substance, and it is ordered spread upon the records of the board in full. It further alleges that on the 5th day of June, 1919, being the 4th day of the June term, 1919, the members of the county council of La Porte county made their report declaring that they met at the time and place designated and viewed the road and declared the same to be a public utility to drain, pave, and grade the same with a 12-foot asphalt macadam pavement along the lines as petitioned, and afterward on the 21st day of August, 1919, the board, reciting that, the board being in regular session after the expiration of ten days from the filing of the report of the engineer and commissioners, the said commissioners and engineers made their

[143 N.E. 591]

supplemental report in writing in the matter of damages, and determined that the estimated cost of the improvement was in the sum of $72,000.

The complaint sets out the report of the commissioners and engineers in full. It also sets out the supplemental report ordering the highway established as prayed for, and finding that no election on the question of improvement is necessary and fixes the time for receiving bids and awarding the contract as January 8, 1920, and orders that the county auditor give notice one time at least two weeks previous to the day set by the board of commissioners for the letting of the contract and said notice shall be published in a daily newspaper of general circulation throughout the county and state and shall be published for two consecutive weeks in a newspaper of general circulation in La Porte county, Ind. It recites that on the 20th day of December, 1919, proof of publication of notice was made showing that the notice was published for two consecutive weeks in the Indianapolis Commercial and on the 3d day of January, 1920, proof of publication for two consecutive weeks in the La Porte Argus was made, and a copy of the notice is set out in the complaint, and on January 8, 1920, no bids being...