Thompson v. Ferguson
| Decision Date | 28 October 1913 |
| Docket Number | 22,128 |
| Parties | Thompson et al. v. Ferguson et al |
| Court | Indiana Supreme Court |
From Benton Circuit Court; James T. Saunderson, Judge.
Proceedings on the petition of William G. Thompson and others for the improvement of a highway, in which Bryce Ferguson and others remonstrated. From a judgment of the circuit court in favor of remonstrators on their motion to remand the proceedings back to the board of county commissioners, the petitioners appeal.
Reversed.
Burton B. Berry and Fraser & Isham, for appellants.
Edmon G. Hall and Elmore Barce, for appellees.
This proceeding for the improvement of a public highway on the line dividing Union and Gilboa Townships, in Benton County was begun under the provisions of the act of March 6, 1909 (Acts 1909 p. 263). Appellants' petition for the improvement was filed in the office of the auditor of the county July 10, 1911, and, in accordance with the provisions of §§ 2 and 4 of the act, that officer fixed the date for the presentation of the petition to the board of commissioners and gave the required notice thereof. This date was August 7, 1911, the first day of the August meeting of the board. On the day fixed the petitioners made proof of the publication and posting of notices and presented their petition to the board. No taxpayer or person affected by the proposed work appeared and filed objections to the form or sufficiency of the petition and the board found and adjudged that due notice had been given and that the petition was in all respects in legal form and sufficient. The board then appointed Don Heaton, surveyor of Benton County, a competent civil engineer, together with Charles Lawson and William Cyr as viewers. In the order of the board appointing them the latter were declared to be responsible freeholders and voters of the county, not residents of either of the townships named in the petition nor the owners of taxable property in those townships, which were qualifications the law required them to possess. Acts 1909 p. 263, § 5. The engineer and viewers so named were by the order directed to meet at the auditor's office on August 10, to qualify and thereafter to proceed with their duties and to file their report with the auditor on August 21, 1911. They were sworn and their report was filed on the respective dates fixed and their report was presented by them to the board of commissioners on September 4, 1911, the first day of the September meeting of the board. The bond of the engineer, required by § 6 of the act (Acts 1909 p. 263), while executed August 25, 1911, was not filed with the auditor until September 1, 1911. But by its terms as executed it was to secure the faithful discharge of the duties of Heaton as engineer for the proposed road during the term of his service beginning August 10, 1911. On August 26 appellees filed with the auditor their remonstrance against the proposed improvement as provided by § 7 of the act, on the ground that it would not be of public utility and convenience, and this remonstrance was presented to the board on September 4, 1911. On this same day one of the remonstrators filed with the board a written motion to set aside the order of the board, made at the August term, adjudging the petition sufficient and appointing an engineer and viewers, and based that motion on the fact that Winfield S. Rowe, one of the commissioners who participated in making the order, was one of the petitioners for the improvement and a freeholder, taxpayer, voter and citizen of Union Township, and was therefore disqualified as a trier of the proceeding. The motion was overruled. That action was followed on the same day by the same remonstrator filing a written motion to reject and set aside the report of the viewers. This motion was based on the same claim of interest and incapacity on the part of Rowe, the commissioner, and on the further grounds that the engineer did not qualify by filing his bond on August 10, 1911, at the time he took oath and that William Cyr as a stockholder and one of the owners of the Lochiel Elevator Company owning elevator property in Union Township which would be taxed for the improvement, was thereby not qualified to act as viewer. This motion was also overruled. After other proceedings contemplated by the act, the board ordered the improvement of the highway as petitioned for, and reported favorably by the engineer and viewers. From this final order of the board of commissioners appellees appealed to the circuit court and there two of the remonstrators filed an unverified motion to remand the cause to the board of commissioners with orders to set aside all orders of the board at its August term of 1911, and all subsequent orders made by it in the cause. This motion was based on the alleged disqualification of Rowe, the commissioner, of Cyr, the viewer, and of Heaton, the engineer, stated in the motion made before the board to set aside the report of the viewers. The court sustained the motion and rendered judgment accordingly. The only question involved in this appeal is the correctness of this ruling of the circuit court.
The judgment of the circuit court remanding the proceeding to the board of commissioners was a final judgment from which an appeal lies. Carr v. Duhme (1906), 167 Ind. 76, 78 N.E. 322, 10 Ann. Cas. 967.
In so far as the action of the trial court in sustaining the motion in question, depended upon the interest and alleged disqualification of Rowe, the county commissioner, it was erroneous. The improvement of the proposed highway was to be paid for by taxation and the interest of the commissioner in question was only that of all of the other taxpayers of the two townships affected, but we do not decide whether that interest would disqualify him or not, for we need not do so. Moreover, it does not appear that the participation of Rowe affected the interests of appellees injuriously at all. The statute (§ 5969 Burns 1908, § 5731 R. S. 1881) makes two members of the board a quorum and it has been held that the fact that one of the three was interested does not oust the jurisdiction of that tribunal. Cauldwell v. Curry (1883), 93 Ind. 363, 365. But if it should be conceded that his interest was such as to require the application of the old maxim of the law, that no man can be the judge of his own cause, it would not render the proceedings of the board in which he participated void, but the utmost effect of his participation in the proceeding in any view of the matter would be to render the action of the board merely voidable. In such case the disqualification may be waived. It is the general rule that unless objection is made at the earliest opportunity to the right of the person claimed to be disqualified to act, it will be deemed to be waived. Carr v. Duhme, supra, and cases there cited; Seybold v. Rehwald (1912), 177 Ind. 301, 95 N.E. 235; 37 Cyc. 83, notes 67, 68; 15 Am. and Eng. Ency. Law (2d ed.) 375; 1 Elliott, Roads and Sts. (3d ed.) § 322.
Whatever disqualification attached to Commissioner Rowe, was made apparent by the presence of his name on the petition as one of the freeholders asking for the improvement of the highway. Due notice of the filing of the petition and that it would be heard on August 7, 1911, was given to all of the taxpayers of the two townships concerned. The appellees had opportunity to appear and make objection to Rowe as one of the triers of the proceeding at that time but did not do so. Under the general rule stated whatever disqualification, if any, attached to him must be taken as waived.
The objection to the competency of the engineer to act in the matter and join in the report of the viewers presents no firmer foundation for the action of the trial court in remanding the proceeding than the interest of the commissioner. Appellees' counsel earnestly urge the claim that the giving of the bond required of the engineer by § 6 of the act was a condition...
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