Loesnitz v. Seelinger
| Decision Date | 11 December 1890 |
| Docket Number | 15,133 |
| Parties | Loesnitz v. Seelinger, Treasurer, et al |
| Court | Indiana Supreme Court |
A Stockinger, C. K. Paget, J. B. Rebuck, C. H. Wilson and J. L Benham, for appellant.
W. G. Holland, for appellees.
Coffey, J. Berkshire, J., took no part in the decision of this cause.
The complaint in this case consists of two paragraphs, to each of which the circuit court sustained a demurrer, and thereupon the appellees had judgment for costs. The assignment of error calls in question the correctness of this ruling. Each paragraph seeks to obtain a decree enjoining the collection of an assessment made against the land of the appellant to aid in the construction of a free gravel road, and each proceeds upon the theory that the proceedings of the board of commissioners, resulting in the assessment, are void.
In the first paragraph it is alleged that the board of commissioners, at the time of making the preliminary order in the proceeding, was called in extra session by the verbal order of the auditor of the county in the month of April, 1884; that it did not meet on the first Monday of June, 1884, as required by law, but met on the Tuesday following the said first Monday, being the 3d day of June; that the term could not exceed nine days, and that the report of the viewers was filed and approved on the 12th day of June, 1884; that said board met in special session on the verbal call of the auditor, on the 12th day of March, 1885, and while so in special session, on the 20th day of that month, appointed the committee to apportion the benefits received from the construction of the free gravel road for which appellant's land was assessed; that the estimated cost to make said improvement was the sum of $ 14,622, and that the board of commissioners let the contract for said work at the sum of $ 13,616, and in addition thereto agreed to pay two dollars per yard for all retaining walls necessary on said road; that the retaining walls necessary to be made were fifteen hundred yards amounting to the sum of $ 3,000; that on the verbal call of the auditor said board again met on the 17th day of December, 1885, and on the 19th day of the month received and approved the report of the committee to apportion the benefits; that at least one-half of the land assessed to pay for said work is so imperfectly described as to be incapable of identification.
The second paragraph, in addition to many of the allegations above set out, alleges that the contract for the retaining walls on said free gravel road was let privately, without bids and without competition, at a price largely in excess of the actual value or necessary cost of the work; that the amount of benefits to be received from said work was never ascertained by any committee or person having authority so to do; that the actual benefits do not exceed $ 7,000, and that the cost of said improvement exceeds the benefits in the sum of $ 7,600; that certain of the parties whose lands are assessed for the construction of said improvement brought their suit in the Ripley Circuit Court to enjoin the collection of said assessments, in which such proceedings were had that said court adjudged that the board of commissioners had no jurisdiction over the subject-matter or over the persons of said parties in the proceedings to make said improvements, and entered a decree enjoining the appellees in this case from collecting the assessments as to them, which decree is in full force, unappealed and unreversed; that said board unlawfully and unjustly ordered and contracted for the construction of three bridges on said road, one of the probable cost of $ 6,000, one of the probable cost of $ 1,000, and one of the probable cost of $ 800, the cost of which bridges went into and constitutes a part of the assessments against the land within two miles of said road, and is part of the assessment against the land of the appellant; that the cost of said bridges is so commingled with the legitimate cost of the construction of said road that it can not be separated therefrom; that the bonds issued for the construction of said road were sold in the month of June, 1884, for cash at their face value before the work done on said road exceeded the sum of $ 600; that the money derived from the sale of said bonds was paid into the county treasury and has since been squandered in useless litigation and otherwise, without the completion of said improvement, and that the work on said improvement has never been completed, nor is any attempt being made to complete the same, and that said road is in worse condition for travel than before work thereon was commenced.
It is contended by the appellant:
First. That the meeting of the board of commissioners, in special session, under the verbal call of the auditor of the county, was illegal, and that any action taken by such board while thus in session is void.
Second. That the board of commissioners can act upon a gravel road petition only when in regular session.
Third. That by a failure of the board of commissioners to meet on the first Monday of June, 1884, the June term of the court lapsed, and that they could not, therefore, meet and hold the June term, and that all acts of the board while pretending to hold the June term are void.
Fourth. That the proceedings of the board of commissioners are void because the contract for the retaining walls was let without bids therefor having been previously received.
Fifth. That the proceedings of the board of commissioners are void because the cost of constructing the road exceeds the benefits.
Sixth. That the proceedings of the board of commissioners are void because they undertook to build bridges costing more than seventy-five dollars by special tax assessed against a part only of the citizens of the county.
Seventh. That the judgment of the Ripley Circuit Court declaring the assessments for the improvement of the road void as to a part of those whose lands are assessed, avoids the assessments as to all.
It has been held by this court that an oral notice given by the county auditor to the board of county commissioners of a special session is sufficient, and when so convened, or when they are lawfully in special session for the transaction of other business, they are authorized, without previous notice to any party interested, to act upon a petition then presented for the establishment of a gravel road. White v. Fleming, 114 Ind. 560, 16 N.E. 487.
We have no reason to doubt the correctness of the conclusion reached in the case here cited, and for that reason we follow it in this case.
That the board of commissioners in this State have the power to act in all matters relating to the establishment and construction of free gravel roads, when in special session, is no longer an open question. White v. Fleming, supra; Anderson v. Claman, 123 Ind. 471, 24 N.E. 175; Stipp v. Claman, 123 Ind. 532, 24 N.E. 131; Fleener v. Claman, 126 Ind. 166, 25 N.E. 900.
The third contention of the appellant presents a question of much difficulty, and one that has not, to our knowledge, been passed upon by this court. It may be conceded, however, that if the failure of the board of commissioners to meet on the first Monday in June resulted in a lapse of the June term, such board could not meet on Tuesday following and hold its regular session.
Such a meeting would be without authority of law, and any acts performed by the board while so acting would be absolutely void. Doss v. Waggoner, 3 Tex. 515; Norwood v. Kenfield, 34 Cal. 329; Wicks v. Ludwig, 9 Cal. 173; Hernandez v. James, 23 La. Ann. 483; Ex parte Osborn, 24 Ark. 479; Brumley v. State, 20 Ark. 77; Garlick v. Dunn, 42 Ala. 404; People v. Bradwell, 2 Cowen, 445; People v. Sanchez, 24 Cal. 17.
It is also undoubtedly true that where the law fixes the time and place for holding a court of inferior jurisdiction, the failure to meet at the...
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