Kirsch v. Braun
| Decision Date | 09 June 1899 |
| Docket Number | 18,374 |
| Citation | 53 N.E. 1082,153 Ind. 247 |
| Parties | Kirsch et al. v. Braun |
| Court | Indiana Supreme Court |
Rehearing Denied Oct. 12, 1899.
From the Benton Circuit Court.
Reversed.
Daniel Fraser and W. H. Isham, for appellants.
S. P Baird and Everett & Ewbank, for appellee.
Appellee sued the board of commissioners, the auditor and the treasurer of Benton county, and also appellants, to recover from the county that part of the proceeds of certain gravel-road bonds which the county had appropriated to its own use, to compel the auditor and treasurer to put upon the duplicate and collect the assessments against the lands of appellants and other proprietors and pay appellee's bonds therefrom, and to establish the validity of the assessments by overturning a judgment of the Benton Circuit Court which had annulled them. Appellants are the landowners in whose favor was rendered the judgment that appellee successfully undertook in this case to have set aside. The assignments of error respecting the pleadings and respecting the conclusions of law on the facts specially found present the same questions.
The special finding discloses these facts: At the regular March session, 1889, of the board of commissioners of Benton county, there was presented to the board a petition, praying for the construction of a free gravel road, setting forth particularly its location, and signed by more than five resident landowners whose lands would be assessed for the cost of the improvement. The petitioners filed their bond. The board found that the petition and bond were in compliance with the statute, and appointed viewers and an engineer to meet on April 16, 1889, and proceed to examine the highway proposed to be improved and report at the regular June session, 1889. The auditor notified the viewers and engineer of the time and place of their meeting, and also gave notice by publication in a newspaper printed in the county for three consecutive weeks next prior to the meeting, of the time and place of meeting, the kind of improvement asked for, and the place of beginning, intermediate points and place of termination. The viewers and engineer met at the time and place appointed and proceeded to make their view.
On the third day of the June session, 1889, the viewers and engineer filed with the board their written report, finding that the improvement would be of public utility, estimating the cost at $ 20,000, and describing by sections and sectional subdivisions the lands that would be benefited and ought to be assessed.
On that day the board found and entered of record that due notice as required by statute had been given of the time and place of the meeting of the viewers and engineer; that public utility required that the road be constructed; that the report of the viewers and engineer be accepted and approved; that the petition was signed by persons owning a majority of all the acres of land, and by more than a majority of the resident landowners whose lands were reported as benefited; and that the road should be constructed upon the route described in the petition. The order of the board also stated the kind of improvement to be made, the width and extent thereof, and a description of the lands benefited.
Some of the landowners appealed from that order of the board to the Benton Circuit Court. The appeal was dismissed on February 18, 1890. At the regular June session, 1890, the board made and entered of record an order, ratifying and confirming all orders theretofore made in the cause, appointing John P. Doyle, a competent engineer, to superintend the construction of the road, and directing Doyle to give notice that a contract for the construction of the road would be let on July 8, 1890. The contract was let on that day. On July 10, 1890, the board made and entered of record an order, directing that $ 12,000 of gravel-road bonds be issued to meet the expenses arising from the construction of the road; that the bonds should be made payable to bearer at the banking house of Winslow, Lanier & Co., New York City, and should recite on their face that they were issued pursuant to an order of the board and pursuant to an act approved March 3, 1877, in relation to free gravel roads and acts amendatory thereof and supplemental thereto, and that they were issued for the purpose of building the H. C. Harris free gravel road in Benton county.
This order of the board further provided that the treasurer of the county should sell the bonds. The bonds were prepared and certified by the auditor and signed by each member of the board under the seal of the county and were delivered to the treasurer in August, 1890, and were in the form prescribed by the board. The treasurer sold the bonds in August to Lamprect Bros., of Cleveland, Ohio, for $ 12,193 cash, which sum was placed by the treasurer in the general fund to the credit of the H. C. Harris free gravel road.
After the bonds were so sold, they were put upon the market and appellee in August, 1890, bought them for $ 12,615.20, in the usual course of business, before due, and under the full belief that they were valid and issued pursuant to law and without any defect in the proceedings. Appellee still owns the bonds. No part of the principal or interest has been paid, except the interest for the first year.
About four and three-quarter miles of the road was constructed before July 1, 1891, the greater part of which was completed before January 1, 1891. A large part of the remaining portion was graded prior to July 1, 1891. The orders of the board directing that $ 12,000 of gravel-road bonds be issued and sold and prescribing the terms, conditions and forms of the bonds were entered of record as a part of the proceedings of the cause, and the landowners were parties to the proceedings and had knowledge of all the facts and never took any steps to enjoin the sale of the bonds, knowing at the time that the bonds would be put upon the market, that they recited upon their face that they were issued pursuant to the statutes of the State, and that they were made payable to bearer. $ 10,993 of the money arising from the sale of the bonds was expended in the construction of the road to the advantage and betterment of the lands assessed to pay for the improvement.
On December 6, 1890, the board appointed a committee to apportion the cost of the road on the lands benefited. On January 26, 1891, this committee reported that other lands, in addition to those reported by the viewers as benefited, ought to be assessed, and thereupon the board ordered that all lands within two miles of the improvement be assessed. On March 13, 1891, the report of the committee was submitted to the board and was set aside, and the board then ordered that only such lands as were originally reported as benefited be assessed, and a new committee was appointed to make the apportionment. The new committee failed to qualify.
At a special session held in April, 1891, the board found and entered of record that the viewers in their report, through inadvertence and mistake, omitted from their report certain described lands lying within the territory sought to be assessed, that the property omitted would be benefited, and that these lands should be assessed in addition to the lands reported as benefited by the viewers. The board also at that session appointed three disinterested freeholders a committee to apportion the estimated expense of the improvement upon the lands benefited, and this committee was ordered to meet at the auditor's office on May 4, 1891, and to proceed to make the apportionment. The committee met at the time and place designated and apportioned the cost upon the lands as directed in the order, and filed their written report in the auditor's office in which they apportioned to and set opposite a description of each forty acre tract of land so ordered to be assessed the amount it should be assessed to pay for the construction of the road. The auditor gave notice of the filing of the report and that the board would meet at his office June 15, 1891, to hear the report, by publication in a newspaper of general circulation, printed and published in the county, for three successive weeks prior to that day. The board met in special session at the time and place named and took the report under advisement and continued the hearing of the cause until the next day and after considering the cause on that day continued the further hearing until June 20th. At this time various exceptions and remonstrances were pending, as hereinafter stated, and the board set aside the assessments and adjudged that the lands of the remonstrators should not be assessed. Thereupon certain petitioners, who had not theretofore objected to or remonstrated against the proceedings, filed their written motion to dismiss the cause on the ground that, as the board had now permitted the original petitioners who had become remonstrants to withdraw, the petition did not contain the names of the owners of a majority of the whole number of acres benefited and returned for assessment. The board then adjourned until June 22nd. On that date, the board overruled the motion, rescinded its order of June 20th, and confirmed all of the assessments. On June 22nd, the board entered of record in these proceedings an order granting an appeal to a group of remonstrants upon their prayer therefor. On June 23rd, while the board was still in session for consideration of this gravel-road proceeding, another group of remonstrants similarly appealed. On July 13th, other remonstrants appealed in vacation. On July 16th, twenty-nine of the petitioners appealed in vacation. Summons was issued in this appeal by the petitioners, but not in the others. In the circuit...
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