Montgomery v. Wasem

• Decision Date: 20 December 1888
• Citation: 116 Ind. 343,19 N.E. 184
• Parties: Montgomery v. Wasem, Treasurer, et al.
• Court: Indiana Supreme Court

116 Ind. 343

19 N.E. 184

Montgomery

v.Wasem, Treasurer, et al.

Supreme Court of Indiana.

December 20, 1888.

On rehearing. For statement, see opinion on original hearing, 15 N. E. Rep. 795.

Wm. P. Edson, J. E. McCullough, and J. H. Miller, for appellant, Hovey & Menzies, for appellees.

Elliott, J.

In so far as the appellant's complaint challenges the sufficiency of the notice, it is unquestionably a collateral attack; and as there is some notice, and that notice has been adjudged sufficient by the tribunal invested in the first instance with the authority of determining jurisdictional facts, the attack is unavailing. This has been the steady ruling of this court since the case of Railroad Co. v. City of Evansville, 15 Ind. 395. In addition to the many cases cited in our former opinion, we cite Prezinger v. Harness, 114 Ind. 491, 16 N. E. Rep. 495; Adams v. Harrington, 114 Ind. 71, 14 N. E. Rep. 603; Hackett v. State, 113 Ind. 532, 15 N. E. Rep. 799; Ely v. Board, 112 Ind. 361, 14 N. E. Rep. 236; Kleyla v. Haskett, 112 Ind. 515, 14 N. E. Rep. 387; Hume v. Conduitt, 76 Ind. 598.

There was, we must conclude upon the strength of this long-settled rule, authority to hear and determine the original case submitted to the court for judgment; and, of course, the judgment is invulnerable, no matter how many errors and irregularities may have intervened, as against a collateral attack.

Another consequence follows from the rule we have stated, and that is, there was some authority for the proceedings of the commissioners and officers, and these proceedings were not wholly destitute of validity. The case is therefore very easily discriminated from one in which there is an entire absence of authority. If there had been no attempt to proceed under the law, or an utter want of jurisdiction, we should have before us a case of a different class; but there was an attempt to proceed under the law, and there was jurisdiction. It is said in the very able brief on the petition for rehearing that, as there is no mode of attacking the acts of the auditor, it necessarily results that injunction will lie. But we think this proposition does not meet the point which obstructs the appellant's way to success. As we understand the record, the auditor did not perform an independent ministerial act, but simply executed, as it was his duty to do, the order of the commissioner's court. A ministerial officer who is engaged in executing an order of court, and obeys the order, cannot be enjoined, nor can an officer who does what the law commands be restrained by injunction. Smith v. Myers, 109 Ind. 1, 9 N. E. Rep. 692. To be sure, the order must be made in a case where there is jurisdiction, and the officer must do rightfully what it directs. Here there was a prior order which authorized the auditor to do the act of which appellant complains, and the only question is whether he so far disobeyed the law as to render void the entire assessment. It may well be doubted whether in any case where a discretion is committed to an officer, his acts can be impeached without proving fraud or mistake. If the auditor erred in the mode of awarding the contract, or erred in determining that the work was completed, it may well be doubted whether such errors could be corrected by judicial intervention, after the work was done, since official discretion is seldom controlled by the courts. Davis v. Railway Co., 114 Ind. 364, 16 N. E. Rep. 639; Weaver v. Templin, 113 Ind. 298, 14 N. E. Rep. 600; Leeds v. City, 102 Ind. 372, 1 N. E. Rep. 711; City v. Mahan, 100 Ind. 242;Anderson v. Baker, 98 Ind. 587;Ricketts v. Spraker, 77 Ind. 371;City v. Cody, 43 Ind. 197;Mayor v. Roberts, 34 Ind. 471;Smith v. Corporation, 20 How. 145;Davis v. Mayor, 1 Duer, 451.

But we do not deem it necessary to decide how far the commissioners or the auditor were vested with discretionary powers; for we think it enough to affirm that there was jurisdiction in the original proceedings, that there was authority of law to execute the original judgment, and that the officers assumed to proceed under the original judgment and subsequent order.

Having affirmed these facts to exist, we come to the controlling question, and that is this: Can the land-owner, after the completion of the work, escape payment of the benefits without tendering, or offering to tender, the amount which in equity the contractor should receive? It is settled in analogous cases that where a tax has been levied, although the officers have not done their duty, the amount admitted to be owing must be tendered and brought into court, but if the amount cannot be ascertained, and that fact is sufficiently pleaded, there may be an offer to do equity. This offer, however, will not be sufficient, unless it clearly appears that no tender can be fully made, for where a tender can be made it must be a legal tender, with all its incidents. Morrison v. Jacoby, 114 Ind. 84, 14 N. E. Rep. 546, 15 N. E. Rep. 806. In this case we have, as fully as in any of the cases cited in the original opinion, the foundation for a valid and enforceable assessment, and there is no conceivable reason why the plaintiff who seeks to avoid payment of the lien should not have the same rule applied to him as in other assessment cases. The cases do apply that rule, and, as we are well satisfied, do rightly apply it to drainage assessments. Prezinger v. Fording, 114 Ind....