OPINION
McCabe, C. J.
On the
22d day of May, 1889, the board of commissioners of Jay
county, at a special session thereof, made the following
order:
"Hickman
Free Gravel Road, Additional Assessment.
"Whereas,
the engineer's estimate for the gravel for the
construction of the Hickman free gravel road was made, and
the costs based on the gravel being obtained from the Hickman
Pit; and
"Whereas,
the gravel above referred to was condemned by the engineer in
charge of said works, and by the board of commissioners of
Jay county, Ind., as being insufficient in quantity and
quality for the construction of said gravel road, and said
engineer and board of commissioners ordered the gravel for
said above named gravel road to be hauled from the pits of J.
B. McKinney, thereby increasing the average haul and creating
an additional expense over and above the original estimate;
and
"Whereas,
there was, on the 25th day of February, 1886, ten thousand
(10,000) dollars of bonds issued and sold to pay said
expenses; and
"Whereas, the committee appointed by this
court, on the 12th of March, 1884, to apportion the cost of
the construction of said road upon the lands as reported
benefited, which report was approved and equalized by said
court on the 9th day of June, 1884, and before the completion
of the construction of said road. It is, therefore,
considered and adjudged, and this board does find, that the
assessment and apportionment heretofore made for the payment
of the costs and expenses of said road is insufficient to pay
said bonds and the accruing interest thereon, and costs of
said road. And it is also found by this board to be
necessary, in order to meet the payment of $ 7,693, to make
an additional assessment upon all the lands as heretofore
reported benefited by said road.
"It
is, therefore, ordered by the board that an additional
assessment of $ 7,693 be levied upon the lands heretofore
reported as benefited by said road; and that Jonas Votaw, W.
H. Harkins, and Nimrod Headington, freeholders of said
county, be and they are hereby appointed a committee to
apportion the additional assessment of $ 7,693 upon the lands
heretofore reported as benefited by said road, being the
actual cost of said road, and that the same be the assessment
in full for said free gravel road for the year 1889.
"And
it is further ordered that the said committee meet at the
auditor's office, in the city of Portland, Jay county,
Indiana, on the 28th day of May, 1889, at 10 o'clock a.
m., and, after being duly qualified according to law, proceed
to make said apportionment and report according to law."
And at
another special session of said board the following order was
entered of record:
"Commissioners'
Court, July 10th, 1889.
"Pursuant
to notice given by publication in the Portland Sun,
a weekly newspaper of general circulation,
printed and published in Portland, Jay county, Indiana, the
board of commissioners of Jay county, Indiana, met in special
session at the auditor's office in the city of Portland,
on Wednesday, July 10, 1889, to hear and determine any and
all grievances that may come before them in the matter of the
Hickman free gravel road.
"Additional
assessment:
"To
the Hon. Board of Commissioners of Jay County, Ind.:
"We,
the appraisers appointed at your May special term, 1889, to
apportion $ 7,693.95 additional cost of construction of the
Hickman free gravel road, pursuant to notice from the county
auditor, met at his office on the 28th day of May, 1889.
After being duly qualified, proceeded to make and file the
following additional assessment of $ 7,693.95 upon the lands
and town lots as heretofore reported and assessed."
Then
follows a list of the lands, with the amount reassessed
against each tract, which was signed by the committee and
duly verified before the auditor.
Thereupon
the appellants whose lands are alleged to be assessed for the
construction of the Hickman free gravel road, and each of
whose lands are alleged to be assessed with an additional
assessment on said road under the order of the board of
commissioners made at their May special session, 1889,
appeared, moved the board, in writing, to dismiss the
proceedings because "the same was commenced by the board
of commissioners at its special session, to wit, at the May
special session, 1889, and the same was set for hearing at a
special session of said board, to wit, at July special
session, 1889. Wherefore they say that said court had no
jurisdiction of the subject-matter of these proceedings, nor
of the person of these respondents."
The
board overruled the motion, and they filed a paper they call
an exception, in which they object and except,
severally and specifically, to the confirmation of said
additional assessment against their lands, and against the
lands of each of them severally and specifically to the
confirmation of said additional assessment, for the reasons:
"1st.
That no notice was given of the time and place where said
viewers would meet to view said road and make said
assessments.
"2d.
That said assessments were not made by actual view of the
lands assessed, but were made by said committee or viewers in
the city of Portland, more than ten miles from the lands
assessed, and without any review of said lands whatever.
"3d.
That the lands of these exceptors and others along the line
of said road, and reported benefited by the construction,
were originally assessed
for the construction of said road in the sum of $ 4,663; that
before placing the same upon the duplicate, the auditor added
to the same 40 per cent., making the sum of $ 1,865.25,
making, in all, the sum heretofore assessed against the land
of these exceptors and others, for the construction of the
said road, the sum of $ 6,528.20, all of which was, and is, a
lien upon the lands of these exceptors and others; that of
said sum, these exceptors have paid all installments due
thereon against them, and are willing to pay the residue, but
they would show that the total cost of said road was only $
5,662, or $ 866.20 less than the assessments heretofore made,
and which they have paid, or are willing to pay, as
aforesaid.
"4th.
That the assessments heretofore made against the lands of
these exceptors, for the construction of said gravel road,
were equal to the full benefits of their said lands by reason
of the construction of said road, and the said additional
assessments are all in excess of the benefits to their lands,
and each of them.
"6th. That these exceptors and remonstrators,
nor either of them, had any notice whatever of the meeting of
the board of commissioners on the day of May, 1889, when the
said board determined and found that the assessments
heretofore made on the lands of these exceptors and others
for the construction of said gravel road, were insufficient
to pay the cost and expenses of said work, and ordered that
the additional sum of $ 7,693.95 should be assessed against
the lands of these exceptors and remonstrators, nor was any
notice whatever given of said meeting of said board in
special session on the day of May, 1889, when said order was
made and said viewers appointed.
"7th.
That a part of said deficiency of $ 7,693.95 was, and is, in
large part, made up of illegal fees and costs paid out, and
of sums paid out for illegal purposes, which sums were paid
out without warrant or authority of law, * * and can not be
charged up against them in this reassessment, which payments
were specifically described.
"8th.
That on the day of -----, 188-, and before the construction
of the said free gravel road, a civil engineer and a
committee were duly appointed by the board of commissioners
of Jay county, who, after being duly qualified, made and
reported to the board, a full and complete estimate of the
cost and expenses of said road, which was ----- dollars,
which was duly approved by the board; that afterwards, on the
day of -----, 188-, a committee duly appointed by said board
to apportion the expenses of said work, among the owners of
said lands, reported benefited made a report, which was duly
confirmed by said board; that the sum so reported by said
committee, to wit, $ 4,663, with the sum of $ 1,865.20, added
by the auditor, making a total sum of $ 6,528.20, was, by the
auditor of said county, placed upon the duplicate of said
county and became a lien against said lands of
these exceptors * *, was and is sufficient to pay the
contract price for the construction of said work, with all
proper and necessary expenses in the construction of the
same. * * That said road was completed by the contractor in
the year 1886, was accepted by the said board of
commissioners of Jay county, and is now, and for three years
last past has been, a part of the free turnpike system of Jay
county. Wherefore, they protest, etc.
"9th.
They deny that any legal liabilities exist against their
lands, on account of the haul of the gravel from other pits
than those estimated by the engineer and committee on any
account whatever."
These
exceptions were overruled by the board, who, after
examination of said report, confirmed and approved the same
and ordered the auditor, after deducting the proper credits
for the amounts, as heretofore paid, more than the original
assessments, to place the same upon the tax duplicate for the
year 1889, against the lands and persons named in said
report. Thereupon the remonstrants, appellants, prayed an...
