Montgomery v. Wasem
| Decision Date | 18 February 1888 |
| Docket Number | 13,619 |
| Citation | 15 N.E. 795,116 Ind. 343 |
| Parties | Montgomery v. Wasem et al |
| Court | Indiana Supreme Court |
Reported at: 116 Ind. 343 at 351.
From the Posey Circuit Court.
The judgment is affirmed, with costs.
W. P Edson, J. E. McCullough and J. H. Miller, for appellant.
A. P Hovey and G. V. Menzies, for appellees.
A drain was established by the board of commissioners of Posey county under the act of 1875. 1 R. S. 1876, p. 428. The allotments apportioned to the several land-owners along the line of the drain not having been worked by them, the work was let to appellee Virgil P. Bozeman. The work was accepted by the county board as completed, and the auditor issued to Bozeman a certificate for the sum due him, and entered the amount of the certificate upon the tax duplicate against the several tracts of land against which allotments of work were made by the viewers. The treasurer has the tax duplicate in his hands, and is threatening to collect the amount charged against lands owned by appellant. He instituted this suit against the treasurer, and Bozeman, the contractor, to obtain an injunction against the collection of the assessment or tax.
Of the objections to the proceedings discussed by appellant's counsel, that first in the natural order is, that no notice was given of the pendency or prayer of the petition for the establishment of the drain.
The suit is clearly a collateral assault upon the proceedings of the county board in the establishment and construction of the drain. In order that the suit may be maintained, it is not enough that those proceedings may be irregular and voidable. It must be made to appear that they are absolutely void.
Section 2 of the act above provides that after the filing of the report by the viewers the county auditor shall cause notice to be given by publication for four successive weeks in some newspaper, etc., and by posting three printed copies of said notice in three public places in the township where the proposed work is located, and one at the court-house in the county, of the pendency and prayer of the petition, and the time set for the hearing, which notice shall contain a pertinent description of the terminus of such proposed work, its direction and course from its source to its outlet, and the names of the owners of the lands that will be affected thereby, etc.
It is recited in the bill of exceptions that appellant read from the files a copy of a notice which was published in a newspaper, as follows:
It is contended that this notice is not sufficient, for the reason, as counsel say, that it is not a notice of the pendency and prayer of the petition, but of the pendency of the report of the viewers.
The words of the statute are that the auditor shall give notice of the pendency and prayer of the petition, and the time set for the hearing, but it is apparent that the report of the viewers is to be heard and passed upon at such hearing, and hence the notice must contain, amongst other things, the names of the owners of lands that will be affected by the work, and they can only be known by a reference to the report of the viewers. And so, the notice must contain a pertinent description of the terminus of such proposed work, its direction and course from its source to its outlet. That can only be ascertained with accuracy by a reference to the report of the viewers, because they may vary the location of the drain from that described in the petition. See section 21 of the act. At that hearing any person interested may file a remonstrance against the report. Section 5.
While the notice copied in the record is not exactly as the statute prescribes, it is evident that any person seeing it would readily understand therefrom that a petition for the construction of a drain is pending before the board. To say the least, the notice given was some notice.
Appellant read in evidence an entry from the record of the proceedings of the county board, made after the time set for the hearing of the petition and the report of the viewers, as follows:
"Which report having been publicly read, and no person objecting thereto, and the board having duly examined the same and the matters and things therein contained, and being satisfied that said ditch is necessary and will be conducive to the public health of those who reside on and near the same, and of public benefit and utility, and that the same had been duly advertised according to law, it is therefore ordered, adjudged and decreed by said court that said proposed ditch and public work be established to the same depth, width and length as specified by the report of the viewers as heretofore returned and filed herewith."
Nothing further is shown as to whether or not the auditor gave notice by posting as the statute requires. The above entry, however, is a sufficient finding and showing that such a notice was given. In other words, it shows that, after an examination, the board was satisfied that all of the notices required by the statute had been given. Such being the case, we must assume that the posted notices were in all respects in compliance with the statute. There is no attempt at proof to the contrary.
When some notice is given, although defective, the orders of the board based upon such notice are invulnerable as against a collateral attack. It was the duty of the board, before proceeding in the case, to determine whether or not the proper notice had been given. It is well settled, that where the jurisdiction of an inferior court depends upon a fact which such court is required to ascertain and settle by its decision, such decision is conclusive as against a collateral attack. Muncey v. Joest, 74 Ind. 409; Argo v. Barthand, 80 Ind. 63; Marshall v. Gill, 77 Ind. 402; Jackson v. State, etc., 104 Ind. 516, 3 N.E. 863, and cases there cited; Forsythe v. Kreuter, 100 Ind. 27; Young v. Wells, 97 Ind. 410; McMullen v. State, etc., 105 Ind. 334, 4 N.E. 903; Carr v. State, etc., 103 Ind. 548, 3 N.E. 375; Updegraff v. Palmer, 107 Ind. 181, 6 N.E. 353; Deegan v. State, etc., 108 Ind. 155; Carr v. Boone, 108 Ind. 241, 9 N.E. 110; Baltimore, etc., R. R. Co. v. North, 103 Ind. 486, 3 N.E. 144; Ricketts v. Spraker, 77 Ind. 371; Pickering v. State, etc., 106 Ind. 228, 6 N.E. 611; Breitweiser v. Fuhrman, 88 Ind. 28; Heagy v. Black, 90 Ind. 534.
It is further claimed by counsel for appellant, that the contract for the construction of the work, between the county auditor and Bozeman, was void for the reason that it was a single contract to construct the whole work allotted to thirty-nine different persons; in other words, that the work for the whole line of the drain was let to Bozeman by one contract.
Without deciding, it may be conceded, for the purpose of disposing of appellant's contention, that the statute, section 12 of the act, supra, contemplates a separate letting of the work allotted to each land-owner, and yet the letting of the whole was nothing more than an irregularity.
We are clearly of the opinion that the letting of the several allotments in one contract did not render the contract absolutely void. Appellant had full knowledge that the ditch was being constructed by Bozeman under the contract, and that he was expending his money in constructing it, and took no legal steps to stop the work or question the proceedings of the county board until this suit was commenced, several months after the work was accepted by the board as completed and after the certificate by the auditor, as provided by section 12, supra, had been delivered to Bozeman, and the amount due him from the several land-owners had been placed upon the tax duplicate for collection. Having thus stood by, and in silence as to the contract, appellan...
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