Todd v. Crail

• Decision Date: 04 April 1906
• Docket Number: No. 20,483.,20,483.
• Citation: 77 N.E. 402,167 Ind. 48
• Parties: TODD et al. v. CRAIL et al.
• Court: Indiana Supreme Court

167 Ind. 48

77 N.E. 402

TODD et al.

v.CRAIL et al.

No. 20,483.^*

Supreme Court of Indiana.

April 4, 1906.

Appeal from Circuit Court, Tipton County; J. F. Elliott, Judge.

Action by George L. Todd and others against Ira F. Crail and others. From a judgement in favor of defendant, plaintiffs appeal. Case transferred from Appellate Court, under Burns' Ann. St. 1901, § 1337u. Affirmed.Oglebay & Oglebay, for appellant. Gifford & Gifford and Coleman & Carter, for appellee.

HADLEY, J.

A proceeding was commenced to construct a gravel road under the Act of 1903 (Acts 1903, p. 255, c. 145). This act provides that upon the presentation to the board of commissioners of a petition signed by a majority of the resident landholders of the county whose lands abut upon the proposed improvement, stating therein the kind of improvement prayed for and the points between which the same is asked, such board, if satisfied that due notice of such application has been given by posting up notices in three public places in the neighborhood of such highway at least ten days before the meeting of the board at which such petition is to be presented, shall appoint three disinterested freeholders of the county as viewers and a competent engineer to proceed, upon a day to be fixed by the commissioners, to examine, view, lay out, or straighten such road as in their judgment public utility and convenience require. The county auditor shall notify the viewers and engineer of the time and place of their meeting, and such viewers and engineer, upon actual view, shall determine what lands are benefited or damaged by the proposed improvement, and if they find such improvement will be of public utility or convenience, and that the costs, expenses, and damages will be less than the benefits to the land within two miles of the improvement, they shall then, upon actual view of all the lands within two miles of the improvement, apportion the estimated costs, expenses, and damages upon all the lands within said two miles that are benefited, according to the benefits to be derived therefrom. Section 2. As soon as they have performed their duties, the viewers and engineer shall report their doings to the commissioners and file the same with the auditor, which report shall show the public utility of the improvement, an estimate of the costs and expenses, the damages assessed to the several tracts of land, the benefits to each 40 acres, or less, thereof, and give a description of the work proposed, the grades, drains, culverts, kind of improvement, and commencement and terminus of the road. Section 3.

This action was commenced in the Tipton circuit court by divers landowners, whose lands were assessed for the improvement, to set aside the contract made between the superintendent appointed by the county commissioners (section 9) and appellees for the construction of said gravel road, and to enjoin said superintendent from issuing the assessment certificate required by the statute to be issued to the several persons assessed. There is no question raised upon the pleadings. The complaint consists of five paragraphs. The first, third, and fourth count upon fraud in letting the contract for construction for a price largely in excess of the total benefits assessed, in tampering with the viewers' report after it had been approved by the board, and that the order of the board was void because it did not define the width, nor the kind and extent of the improvements; the second and fifth, that the superintendent, upon the same facts pleaded in the other paragraphs, was about to issue certificates of assessment against the plaintiffs' lands for a sum 40 per cent. in excess of the benefits assessed thereto. The answer was a general denial. The court found the facts specially, and stated conclusions of law thereon in favor of the defendants. Judging the theory of the case more from the points and argument of counsel for appellants than from the averments of the complaint, it appears that appellants rest their claim for relief upon the ground that the proceedings before the board of commissioners and the appointment of a superintendent of construction were void for want of jurisdiction. It is conceded by appellants that, if the proceedings and orders of the board herein assailed are not absolutely void, then a collateral attack by injunction is not available. The fundamental question, therefore, for decision, involves the jurisdiction of the board over the subject-matter and persons of appellants.

It is first insisted that the commissioners had no jurisdiction of the subject-matter to enable them to establish the gravel road or appoint a constructing superintendent, and that all proceedings purporting to effectuate these ends were void. It is the express legislative purpose to give to boards of commissioners, by the act of 1903, jurisdiction or power to construct or improve, by straightening, grading, draining, and graveling, highways within the limits of their counties, and there can be no doubt of the jurisdiction in this case if it is properly shown there has been a substantial compliance with the statute. The presentation of a petition, sufficient within the terms of section 2 of said act, praying for the improvement, and accompanied by proof that notice of the presentation had been given as required by said section, confers upon the board unmistakable jurisdiction of the subject-matter do these things sufficiently appear from the record before us?

The first entry in the commissioners' record is in these words: “Roley Smith, G. R. Petition No. 41, May 18, 1903. June 1, 1903. Proof of notice filed. Petition filed showing petition signed by majority of resident abutting landowners of the county. Petition granted as prayed for, and George Potter, Samuel McReynolds, and Tinker Neal appointed viewers, and Alonzo Scott surveyor. Ordered to meet at the office of the county surveyor on June 26, 1903, and qualify and make view and make report.” In the above minutes it is shown that the first steps taken by the board in the Roley Smith gravel road No. 41 was on June 1, 1903, when “proof of notice was filed and a petition signed by a majority of abutting landowners of the county was presented, considered, and granted as prayed.” All that was necessary to the board's jurisdiction of the subject-matter was the presentation of a petition, signed by a majority of the abutters in the county, stating the kind of improvement prayed, the beginning and terminus of the road, and making proof that notice had been given of the presentation, as provided in section 2. The board of commissioners is the only judge created by the Legislature to determine whether its right to proceed in such a case accrues, by having presented to it such a petition, and notice thereof, as the law requires as a prerequisite to its jurisdiction. There is no other tribunal to decide for it. Hence the doctrine that, when a court of limited powers assumes and exercises jurisdiction in cases where it may be rightful, the existence of all preliminary facts essential thereto will be presumed, in an indirect proceeding, to have been established; and especially is this true in a case like this, where there is a total absence of averment of the nonexistence of such jurisditional facts. “It is a well-settled principle,” said this court in Railroad Co. v. Evansville, 15 Ind. 421, “that where the jurisdiction of an inferior court depends upon a fact which such court is required to ascertain and settle by its decision, such decision is conclusive.” See, also, Board v. Montgomery, 106 Ind. 517, 519, 6 N. E. 915;City of Terre Haute v. Beach, 96 Ind. 143, 155; Railroad Co. v. Sutton, 130 Ind. 405, 411, 30 N. E. 291;Bowen v. Hester, 143 Ind. 511, 517, 41 N. E. 330;Runner v. Scott, 150 Ind. 441, 448, 50 N. E. 479;Knox County v. Aspinwall, 21 How. 539, 16 L. Ed. 208;Evansville Co. v. Winsor, 148 Ind. 682, 691, 48 N. E. 592.

Another view leads to the same conclusion. Where the law...