State v. Roberts

• Decision Date: 29 March 1948
• Docket Number: 28342.
• Citation: 78 N.E.2d 440,226 Ind. 106
• Parties: STATE v. ROBERTS et al.
• Court: Indiana Supreme Court

78 N.E.2d 440

226 Ind. 106

STATE v. ROBERTS et al.

No. 28342.

Supreme Court of Indiana

March 29, 1948

On Rehearing March 30, 1948.

Cleon H. Foust, Atty. Gen., and Connor D. Ross Dep. Atty. Gen., for appellant.

Victor K. Roberts, Judge, of Lowell, and George Sammons, of Kentland, for appellee.

EMMERT, Chief Justice (dissenting).

The State of Indiana as a sovereign brings this original action in this court against the Newton Circuit Court and the special judge thereof to prohibit the court from enforcing its judgment, entered in a proceeding for the repair of an old drain in Newton County, which ordered the ditch and drain established 'over the route as laid out and described in the Surveyor's report as amended, which road extends over and across United States Highway No. 41,' and which further adjudged that the 'Highway Commission of Indiana construct and pay for the bridge over United States and States Highway No. 41 where said ditch crosses said highway.'

Relator's petition alleged United States Highway No. 41 extends from a point on the Illinois-Indiana state line near Chicago to a point on the highway near Evansville, and connected at said respective points with adjoining highways over Illinois and Kentucky; that it was constructed in cooperation with the federal government under the Federal-Aid Acts and said funds were expended in the construction and improvement thereof and 'that the United States mail is carried over said highway; that several other important, through highways make connections with said U. S. Highway No. 41 and that said highway is one of the most important interstate highways of the United States and of the highway system of Indiana.' The relator's petition further alleges there now exists a permanent concrete culvert for the passageway for the carrying of water six feet in width and six feet in height where the existing ditch crosses the highway; but that the Surveyor's Report approved by the court provided for the removal and destruction of the existing culvert and the construction of a new channel through the highway at that point five feet in width at the bottom and 25 feet wide at the top and eight feet deep, which will necessitate a new bridge at the point of crossing which will cost from $20,000 to $25,000. The State of Indiana was not made a party to the proceedings at any stage, nor was any service of process or notice of any kind ever made on the Governor or the Attorney General of Indiana. ^[1] The petition to repair alleged as an owner the 'State Highway Commission' and its land was described as 'State & Federal Highway No. 41, in Sec. 22-28-9.' The assessment sheet alleged as an owner 'Indiana State Highways,' and the description of land was alleged as 'benefit to the Right of ways on Road No. 16 & No. 41.'

It should be noted that the petition does not in positive terms allege that the destruction of the present culvert and the cutting of the new channel will constitute an unlawful and unreasonable burden on interstate commerce, or that it will materially interfere with national defense, or that the transportation of the United States mail will be unreasonably or unlawfully 'hampered, interfered with, and delayed.' Nor does the majority opinion in its reasoning consider these issues. See United States v. Babcock, D.C.1925, 6 F.2d 160; Babcock v. United States, 7 Cir., 1925, 9 F.2d 905.

However, the majority opinion does constitute a radical departure from the well considered cases defining and limiting the authority of public officers and servants of the state to that which may be granted by the Constitution and by the statutes enacted pursuant thereto, and it ignores the constitutional limitations against action against the state of Indiana. For these reasons I feel compelled to dissent.

'The right to enter upon another's land and dig ditches for drainage is unknown to the common law. The right is purely statutory.' Kaufman v. Alexander, 1909, 173 Ind. 136, 139, 88 N.E. 502, 504. 'Drainage proceedings are wholly statutory, and questions as to the authority of the court in constructing a new drain, or changing, repairing, or extending a drain already established, must be solved by a reference to the statute.' Kilty v. Michael, 1921, 190 Ind. 374, 382, 130 N.E. 531, 534. See also Taylor v. Strayer, 1906, 167 Ind. 23, 78 N.E. 236, 119 Am.St.Rep. 469. The drainage act provides that the proceeding may be brought either before the board of county commissioners, or in a circuit or superior court. The board of county commissioners is a statutory board, and in common with all other statutory boards or officers, only has the powers granted by the statute. The act can not mean one thing when a proceeding is brought before a board of county commissioners, and something else with larger authority when brought in a circuit or superior court, nor does the act make it lawful for a court to do something which would be unlawful for a board of county commissioners to order. The jurisdiction of the court in a ditch proceeding is limited by the statute creating the right unknown to common law.

The proceedings to repair this drain were filed June 24, 1944, and so were governed by the provisions of Chapter 264 of the 1933 Acts, as amended by Chapter 225 of the 1935 Acts and Chapter 165 of the 1941 Acts, Burns' Ann.St. § 27-101 et seq.

If it be conceded that ditch proceedings are in rem they are not ex parte in any sense of the term. 'Proceedings are ex parte when relief is granted without an opportunity for the person against whom the relief is sought to be heard.' Restatement, Torts, § 674, p. 445.

Under the due process clause of the Fourteen Amendment of the Federal Constitution, neither a court nor a board of county commissioners may take private property in drainage proceedings without reasonable notice to the person injuriously affected.

'In the above case [Chesebro v. Los Angeles Co. Flood Control Dist., 1939, 306 U.S. 459, 59 S.Ct. 622, 83 L.Ed. 921] it is also held that where the district was not directly created by the legislature, and there has not been a determination that certain property will be benefited by local improvements, the owners are entitled to notice under the 'due process of law' clause of the Fourteenth Amendment, and further that they are entitled to be heard by some officer or tribunal empowered by the state to hear them, and to consider and decide whether or not their lands will be specially benefited. Citing Fallbrook Irrigation District v. Bradley, 1896, 164 U.S. 112, 167, 17 S.Ct. 56, 41 L.Ed. 369, 391.' Board of Commissioners v. Falk, 1943, 221 Ind. 376, 47 N.E.2d 320, 323, 145 A.L.R. 1190.

Notice is necessary to give jurisdiction to the court in a ditch petition. Higgins v. Swygman, 1923, 194 Ind. 1, 6, 141 N.E. 788. Ditch proceedings are adversary in character. Honnold v. Endicott, 1908, 170 Ind. 16, 19, 83 N.E. 502.

An assessment against the land of one who is not named in the ditch proceeding, and who has no notice thereof, is void. Righter v. Keaton, 1908, 170 Ind. 461, 84 N.E. 977; Uhl v. Moorhous, Treasurer of White County, et al., 1894, 137 Ind. 445, 37 N.E. 366; McCollum et al. v. Uhl, 1891, 128 Ind. 304, 27 N.E. 152, 27 N.E. 725; Prezinger v. Harness, 1888, 114 Ind. 491, 16 N.E. 495; Davis, Treasurer v. Lake Shore and Michigan Southern Railway Co., 1888, 114 Ind. 364, 16 N.E. 639; Brosemer et al. v. Kelsey, 1886, 106 Ind. 504, 7 N.E. 569; Jones et al. v. Cardwell et al., 1884, 98 Ind. 331; Vizzard v. Taylor, Treasurer, 1884, 97 Ind. 90; Brett v. Pretorious, 1911, 48 Ind.App. 527, 96 N.E. 211.

Under Section 20 of the Act, a proceeding for the repair of a ditch or drain has the same requirements as to notice and jurisdiction as an original proceeding for the establishment of a drain. ^[2] Section 4 of Chapter 264 of the 1933 Acts, Burns' Ann.St. § 27-104, requires that the petition 'shall give the names of the owners thereof, if known, or upon diligent inquiry can be ascertained, and if unknown, shall so state. If the name of the owner is unknown and cannot be ascertained on diligent inquiry, it shall be sufficient to describe such land as belonging to the person who appears to be the owner by the last tax duplicate or record of transfers kept by the auditor of the county in which such land is situated.' It would be a gross absurdity to hold that private landowners must have notice, and the legislature required notice to the political subdivisions of the state, yet the state itself was not entitled to notice before it might be ordered to spend thousands of dollars for the benefit of private landowners even though the drain be of public utility.

Under § 36-118, Burns' 1933, Acts 1933, Ch. 18, § 18, p. 67, the State Highway Commission takes title not in its own name, but in the name of the State of Indiana. Even in the absence of this statutory provision, the ownership of the highway easement is in the state at large. Lamphier v Karch, 1915, 59 Ind.App. 661, 109 N.E. 938. This ownership is recognized by the drainage act, which in § 9, § 27-109, Burns' 1933, provides in part, 'If, by reason of a cut-off, for the purpose of shortening and straightening, it is necessary for the state, county, towhship, or railroad to construct new bridges, the state, county, township, or railroad affected, shall bear one-half of the cost and the remainder shall be borne by the improvement.' (Italics added.) The petitioners in this proceeding are presumed to have known what the law was, and they are bound by it whether they knew it or not. Section 6 of the Drainage Act has specific provisions that notice of the petition shall be given to the political subdivision of the state. But there is no statutory provision authorizing the state to receive notice by...