Strayer v. Taylor

• Decision Date: 11 December 1903
• Docket Number: 20,103
• Citation: 69 N.E. 145,163 Ind. 230
• Parties: Strayer et al. v. Taylor et al
• Court: Indiana Supreme Court

69 N.E. 145

163 Ind. 230

Strayer et al. v. Taylor et al

No. 20,103

Supreme Court of Indiana

December 11, 1903

Rehearing Denied June 30, 1904.

From Noble Circuit Court; Anthony Deahl, Special Judge.

Petition for the establishment of a ditch by John N. Strayer and others before the board of commissioners of Noble county. Henry L. Taylor and others filed a remonstrance. From a judgment of the circuit court dismissing the petition and vacating the judgment of the board establishing the ditch the petitioners appeal.

Reversed.

T. A Redmond and L. H. Wrigley, for appellants.

H. G. Zimmerman, J. W. Hanan, E. D. Salsbury, W. L. Taylor, F. A. Woods and Rowland Evans, for appellees.

OPINION

Gillett, C. J.

This proceeding was instituted by appellants under the act of April 21, 1881 (Acts 1881, p. 410), and the amended and supplemental legislation based thereon (§ 5655 et seq. Burns 1901), to establish and construct a ditch having its head or source in Noble county and its outlet in Lagrange county. The transcript in the court below was filed therein by the auditor of Noble county, and such facts as appear concerning the proceedings prior to the filing of such transcript we take therefrom. There was a petition filed, which described in a general way the proposed ditch. It was averred in said petition that the construction of such ditch would improve the public health, benefit public highways, drain large areas of wet, swamp, and overflowed lands, and that the work would be of public utility. It is shown by said petition that the proposed ditch runs in a westerly direction from the point of commencement to Shockopee lake, thence in a northwesterly direction to Hardy lake, thence in a northerly direction across said lake to the watercourse leading from said lake, thence following said watercourse to the commencement of what is denominated the "county line ditch," thence following said ditch to its termination on the county line, thence west to Navoo lake, thence across said lake in a northwesterly direction, and thence in a westerly direction to a certain natural watercourse. The petition was addressed to the boards of commissioners of said counties. A bond was filed by the petitioners, as required by said act. The board in Noble county appointed three viewers, and they and two other persons subsequently joined in a report as viewers. This document recites that they were appointed as viewers by the action of the two boards, and is addressed to them. Said report definitely describes the proposed drain, gives the size thereof, the amount of excavation at each station, fixes the levels, and shows that the route has been staked except where it extends across lakes. The report also states facts from which it appears that the work will be of public utility. It further appears from said report that the route along the county line ditch extends across Tamarack and Mud lakes. Neither the petition nor the report shows that it is proposed to drain or lower any lake. None of said five lakes is described in any particular in either of said documents. The depth and width of the ditch at the points of exit from the lakes are given in some instances, but, as neither of said papers advises us as to the levels of the natural outlets to said lakes, we can not affirm, as a physical fact, that any lake will be lowered by the construction of the ditch. It is stated in the report that it will be necessary to remove a certain mill-dam, but there is no description of it and no statement that it was in use. The transcript shows that after the filing of said report a notice was duly published of the pendency of the proceeding, which notice was signed by the auditors of said counties. As the next step, it is shown that the auditor of Noble county presented to the board thereof a certified transcript of a remonstrance filed by appellee William L. Taylor in the office of the auditor of Lagrange county, addressed to said boards. This remonstrance is based on fourteen grounds, some of which purport to be a challenge to the jurisdiction of said boards, others relate to matters of irregularity, and others relate to matters which should properly be referred to reviewers. It also appears that in connection with said remonstrance the auditor of Noble county presented a certified copy of a bond filed by said Taylor with the auditor of Lagrange county, which bond appears to have been approved by him. Subsequently said Taylor appeared by counsel before the board of commissioners of Noble county, and made what appears to have been oral objections to the jurisdiction of said board, and moved said board to set aside the report of the viewers and dismiss the petition. The motion was overruled, to which ruling said Taylor objected and excepted. The record of said board then shows the following entry: "The remonstrant, by his attorney, states to the board that the remonstrant does not ask that reviewers be appointed in this cause. The board therefore does not appoint reviewers." The petitioners then filed a motion to dismiss the remonstrance, on the ground that said Taylor, by waiving the appointment of reviewers, had lost his standing to remonstrate. This motion was sustained by said board, and the ditch was ordered established and constructed as provided in the report of the viewers. Taylor prosecuted an appeal from said judgment.

In the court below the petitioners renewed their motion last mentioned, and said Taylor filed a motion to dismiss the proceeding on jurisdictional and other grounds. The motion of petitioners was overruled, and the motion of Taylor was sustained. The principal question argued in this court is as to the propriety of the latter ruling. The first claim made by appellee Taylor is that the proceeding was properly dismissed because it does not appear that there was any proceeding or judgment had in the matter of said ditch by the board of commissioners of the county of Lagrange.

As the drain was to be constructed in two counties, it was required that an order establishing it should be made by each of the two boards. §§ 5677, 5678, 5678a Burns 1901. The latter section provides that said § 5678 shall "be construed to provide that each board of commissioners required to act in the establishment and construction of a joint ditch, shall act by itself, sitting alone in its own county; all rendering like judgments conforming to the one rendered in the county having original jurisdiction." Section 5677, supra, provides that the auditor of the county containing the head or source of the proposed ditch (in which county the petition is to be filed) shall transmit a certified copy of the petition to each of the other counties interested. It is to be presumed that the auditor of Noble county performed the statutory duty stated, and not only does the proceeding in Noble county suggest in various ways that the proceeding was also pending in Lagrange county, but the acts of appellee Taylor also suggest that fact. It is true that it does not appear that a final order was made by the board of commissioners of the county of Lagrange, but we do not think that this was necessary to the jurisdiction of the Noble Circuit Court on appeal. A legislative judgment is a solecism. Under the statute from which we have quoted, the proceeding in the county or counties other than the county where it is commenced is of an administrative nature. The historic character of boards of commissioners warrants the assertion that they may be invested with powers of a judicial nature. Board, etc., v. Heaston (1895), 144 Ind. 583, 41 N.E. 457, 55 Am. St. 192; Board, etc., v. Conner (1900), 155 Ind. 484, 58 N.E. 828; Elliott, Gen. Prac., § 197. The purpose of § 10 of article 6 of the state Constitution was to authorize the conferring upon such boards of powers of a local, administrative character. There is therefore no constitutional objection to the view that in the construction of a ditch in two counties the governing board may act judicially, while the duties of the other board respecting the particular subject-matter are purely administrative. The performance of the duties enjoined upon the latter board may be compelled by mandamus. The whole jurisdiction or power is in the board where the proceedings are commenced, and it is only from its judgment that an appeal can be prosecuted. The views above expressed find partial support, at least, in Denton v. Thompson (1893), 136 Ind. 446, 35 N.E. 264, and Sarber v. Rankin (1900), 154 Ind. 236, 56 N.E. 225.

There having been a final judgment by the board of commissioners of Noble county, whereby one or more of the matters mentioned in § 5671 Burns 1901, was determined appellee Taylor was authorized to appeal, and the matters that he might present on appeal were not limited by said section to the matters mentioned in the four subdivisions of said statute. Trittipo v. Beaver (1900), 155 Ind. 652, 58 N.E. 1034. It is, however, a rule that the cases in this State thoroughly enforce, in appeals by remonstrants in drainage and highway proceedings, that, with the exception of objections that go to the jurisdiction of the board over the subject-matter, such remonstrants can not present any question that was not raised in the commissioners' court. Makeever v. Martindale (1901), 156 Ind. 655, 60 N.E. 341; Trittipo v. Beaver, supra; Forsyth v. Wilcox (1895), 143 Ind. 144, 41 N.E. 371; Steele v. Empsom (1895), 142 Ind. 397, 41 N.E. 822; Indianapolis, etc., R. Co. v. Hood (1891), 130 Ind. 594, 30 N.E. 705; Budd v. Reidelbach (1890), 128 Ind. 145, 27 N.E. 349; Metty v. Marsh (1889), 124 Ind. 18, 23 N.E. 702; Wells v. Rhodes (1887), 114 Ind. 467, 16 N.E. 830; Washington Ice Co. v. Lay (1885), 103 Ind. 48, 2 N.E. 222; Forsythe v. Kreuter (1884), 100 Ind....