Hull v. Board of Commissioners of the County of LaPorte

• Citation: 143 N.E. 589,195 Ind. 150
• Decision Date: 22 April 1924
• Docket Number: 24,227
• Parties: Hull et al. v. Board of Commissioners of the County of LaPorte et al
• Court: Supreme Court of Indiana

143 N.E. 589

195 Ind. 150

Hull et al.

v.

Board of Commissioners of the County of LaPorte et al

No. 24,227

Supreme Court of Indiana

April 22, 1924

Rehearing Denied July 3, 1924.

1. MANDAMUS.---Complaint.---Sufficiency.---In a suit by the contractor for the construction of a highway under the County Unit Road Law against the board of county commissioners to compel the execution and issuance of bonds for the road complaint held good against demurrer. p. 154.

2 HIGHWAYS.---County Unit Law.---Bonds Issued.---Approval of County Council Unnecessary.---County unit highway bonds are not bonds of the county requiring the approval of the county council under the County Reform Law, but are the bonds of a special taxing district, not payable from county funds, but from funds raised by special taxes on the property of the district. p. 159.

3. HIGHWAYS.---Jurisdiction of Board of Commissioners.---Finding of Board Same as Judgment of Court.---Not Subject to Collateral Attack.---Statute.---In a proceeding to improve a highway under the County Unit Road Law (Acts 1919 p. 531 7648b1 et seq. Burns' Supp. 1921), where the board of commissioners passed on the sufficiency of its own proceedings and held them sufficient, its finding had the same binding effect as the judgment of a circuit court and could be set aside only by appeal to a court of competent jurisdiction. p. 159.

4. HIGHWAYS.---County Unit Road Law.---Jurisdiction.---Collateral Attack.---Statute.---The County Unit Road Law (Acts 1919 p. 531, 7648b1 et seq. Burns' Supp. 1921) confers on the board of commissioners of each county jurisdiction of proceedings to improve the public highways of the county under that law, and after a petition has been filed with the auditor, a date for hearing set and notice thereof published and posted as required by law, the board has full and complete jurisdiction of that particular proceeding, and its orders, rulings and judgment are as invulnerable against collateral attack for error or irregularity in the proceedings as if made and entered in the circuit court. p. 160.

5. HIGHWAYS.---County Unit Road Law.---Record of Proceedings.---Presumption as to Regularity.---Statute.---In a proceeding under the County Unit Road Law (Acts 1919 p. 531, 7648b1 et seq. Burns' Supp. 1921) to improve a highway, after jurisdiction has been acquired of a particular proceeding, the orders, rulings and judgment of the board of commissioners are supported by the same presumptions of regularity as if made and entered in the circuit court, and the fact that the record fails to disclose strict compliance with every provision of the statute does not affect the validity of the proceedings, as it will be presumed that whatever ought to have been done was done and rightly done. p. 160.

6. HIGHWAYS.---Bonds for Construction.---Rate of Interest.---Statute.---Where, between the time an order was made by a board of county commissioners for the issuance of bonds to pay for the construction of a highway improvement and a subsequent order for the issuance of bonds of smaller denominations at a higher rate of interest, the statute had been changed to allow interest at 6 per cent, instead of 5 (Acts 1921 p. 638, 4, 10139t7 Burns' Supp. 1921), if no remonstrance or objection was filed in the office of the auditor of the county within fifteen days after the order of the board for such issue, the order of the board for such bonds at 6 per cent, was valid and could not be collaterally attacked. p. 161.

7. HIGHWAYS.---Bonds for Construction.---Issuance of.---Order of Board of Commissioners.---When Final.---Statute.---In a proceeding for the improvement of a county highway, where the board of commissioners has determined upon the issuance of bonds to pay for the improvement, if no remonstrance or objection is filed in the office of the county auditor within fifteen days after such determination, as provided by the Tax Law (Acts 1921 p. 638, 4, 10139t7 Burns' Supp. 1921), the order of the board for the issuance of bonds is final. p. 161.

8. COUNTIES.---Action by County Commissioners.---Collateral Attack.---When Warranted.---Unsigned Records.---A collateral attack on the records, orders and judgments of a board of county commissioners cannot be maintained by showing that the proceedings were irregular and the orders and judgments unwarranted, but it must be shown that such judgments and orders were absolutely void, and nothing but lack of jurisdiction will render such orders and judgments void; it is immaterial on collateral attack that some of the records are unsigned. p. 162.

9. COUNTIES.---Board of Commissioners.---Cannot Set Aside Orders.---A board of county commissioners has no equity powers and, therefore, cannot set aside its own orders and judgments, even when obtained by fraud, as no authority has been granted by law so to do. p. 163.

10. TAXATION.---State Board of Tax Commissioners.---Powers.---Cannot Set Aside Own Orders.---The State Board of Tax Commissioners has no equity powers and, therefore, cannot set aside its own orders, even when obtained by fraud, as no authority has been granted by law so to do. p. 163.

From St. Joseph Superior Court; Chester R. Montgomery, Judge.

Action in mandate by the State of Indiana on the relation of Stephen D. Flynn against the board of commissioners of LaPorte county and the individual members of the board, to compel the execution and issuance of highway bonds, in which Harvey Hull and others intervene. From a judgment for plaintiff, the intervenors appeal.

Affirmed.

R. N. Smith, Earl Rowley, C. V. Shields and Lemuel Darrow, for appellants.

Andrew J. Hickey, Norman F. Wolfe, John B. Dilworth and S. J. Crumpacker, for appellees.

Willoughby J. Travis, J., not participating.

OPINION

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 LaPorte, under and by authority of the County Unit Road Law, the suit being brought against the board of commissioners of LaPorte 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 with relator 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 plaintiff 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 LaPorte and the individual members thereof, the principal defendants, is withdrawn by counsel, and the said Board of Commissioners of the county of LaPorte, 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 LaPorte, 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 LaPorte, Indiana, and the individual members comprising the same, do execute, sign and turn over to the county treasurer of LaPorte 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 LaPorte county, Indiana, established in a proceeding before the Board of Commissioners of the county of LaPorte, Indiana, upon the petition of L. J. Gross, et al., as provided in an order of the Board of Commissioners of the county of LaPorte 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 LaPorte. * * *"

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.

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 LaPorte county, Indiana. It shows that the petition signed by fifty or more freeholders and voters of said county, was filed on March 31, 1919, in the office of the auditor of LaPorte county, Indiana. 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 April 22, 1919, and notice was published and posted...