Ross v. Becker
| Decision Date | 28 May 1907 |
| Docket Number | 20,912 |
| Citation | 81 N.E. 478,169 Ind. 166 |
| Parties | Ross et al. v. Becker et al |
| Court | Indiana Supreme Court |
Rehearing Denied October 18, 1907.
From Howard Circuit Court; James F. Elliott, Judge.
Highway proceeding by Herman F. Ross and others, against which Edward G. Becker and others remonstrate. From a judgment for remonstrants, petitioners appeal.
Affirmed.
Oglebay & Oglebay, for appellant.
Kemp & Kemp, for appellee.
Under "an act concerning gravel roads," approved March 9 1903 (Acts 1903, p. 255), appellants filed before the Board of Commissioners of the County of Tipton their petition for the improvement of a highway in said county. The petition was in circulation for signatures on January 12, 1905, and notice of the intention to present the same to the commissioners was posted January 17, 1905, and the petition was actually presented February 6, 1905. When the petition was first put in circulation for signatures, January 12, there were nine resident landholders of the county whose land abutted on the proposed improvement, five of whom signed the petition. On January 14 and 23, respectively, Edward G. Becker, one of said abutters, conveyed by deed, his wife not joining, to each of his five children, a separate part of his land, each part abutting upon said proposed improvement, and at the time of the presentation of said petition to the commissioners, to wit, February 6, there were fourteen resident landowners of the county whose land abutted on the proposed improvement but five of whom had signed the petition for the gravel road. On the day set for the hearing of the petition the nonpetitioning abutters, nine in number, including the grantees of Edward G. Becker, appeared before the commissioners, and moved to dismiss the petition, on the ground that the same was not signed by a majority of the resident abutting landowners. To the motion the petitioners filed a verified answer to the effect that the grantees of Edward G. Becker, naming them, were not bona fide holders of said lands, but were fraudulently made such holders for the fraudulent purpose of increasing the number of abutting landowners, and thereby preventing the five petitioners from constituting a majority of such abutters. To the answer Edward G. Becker replied in denial. The motion to dismiss the petition was overruled, and the board expressly found that "the petition is signed by a majority of the resident landowners," and appointed viewers. The viewers and engineer made reports, and upon the maturity of the notice thereof the Beckers again appeared before the commissioners and renewed, over appellants' objection, their motion to dismiss the petition and proceedings because the petition was not sufficiently signed. The motion was overruled. Appellees then filed separate remonstrances raising the same questions, which were also overruled. The remonstrators appealed to the Tipton Circuit Court, whence the case was venued to the Howard Circuit Court, where the motion to dismiss the petition was again renewed and sustained, from which decision the petitioners appeal.
The first question for consideration is whether the decision of the board of commissioners, holding that the petition for the improvement was signed by a sufficient number of abutting landowners, was final and conclusive, or subject to review by the circuit court on appeal. Unless the petition was signed by a majority of the resident landowners whose land abutted on the proposed improvement, the board of commissioners was absolutely without power to take any step looking to the construction of a gravel road. Acts 1903, p. 255. When the petition was presented, the first step to be taken by the commissioners was to determine whether the petition was signed as the statute required it should be, in order to give them authority to act upon it. The inquiry was one of fact, to determine which the board was required to hear the evidence, weigh it, and judicially decide. When the fact of signing was thus ascertained the board had no discretion. If the signing was by a majority of the abutters, the law required said board to proceed in the matter and appoint viewers. If signed by less than a majority, it found itself without power to go on, and nothing remained but to dismiss the proceedings for want of jurisdiction.
Was the ruling of the commissioners on this fact appealable to the circuit court? This proceeding was begun in February, 1905, under the highway act of 1903, supra, and the improvement, when finally ordered by the commissioners, was after the taking effect of the highway act of 1905 . There is, however, in the latter act a provision that it "shall not effect any pending litigation, or proceeding, but the same shall be concluded, and be effective in all respects as if this act had not been passed." So the act of 1905, supra, must be eliminated, and resort had to the provisions of the act of 1903, supra, so far as necessary to the disposition of the case.
In passing, it is well to bear in mind that the appellees appeared before the commissioners at the first presentation of the petition and challenged their jurisdiction for want of a sufficiently signed petition, and raised the same question by remonstrance and on appeal to the circuit court. Section seven of the act of 1903, supra, provides that on or before the day set for the hearing of the report of the viewers, the owners of any lands affected by the work may remonstrate against the report for any or...
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