Ward v. Bd. of Com'rs of Lake Cnty.

• Decision Date: 05 August 1927
• Docket Number: No. 25366.,25366.
• Citation: 157 N.E. 721,199 Ind. 467
• Parties: WARD v. BOARD OF COM'RS OF LAKE COUNTY et al.
• Court: Indiana Supreme Court

199 Ind. 467

157 N.E. 721

WARD

v.BOARD OF COM'RS OF LAKE COUNTY et al.

No. 25366.

Supreme Court of Indiana.

Aug. 5, 1927.

Appeal from Lake Circuit Court.

Suit for injunction brought by Oliver P. Ward against the Board of Commissioners of Lake County and others. From a judgment on demurrer for defendants, plaintiff appeals. Affirmed.W. J. Whinery, of Hammond, for appellant.

Tinkham & Galvin, of Hammond, and John W. Wake, of Gary, for appellees.

PER CURIAM.

The appellant brought suit against the appellees to enjoin them and each of them from proceeding with the construction of a proposed highway in North township, Lake county, Ind. Appellees demurred to the complaint, which consisted of one paragraph, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the demurrer. Appellant excepted and declined to plead further. Thereupon the court entered final judgment that appellant take nothing by his complaint. The appeal is from that judgment. The ruling on the demurrer to the complaint is assigned as error.

The complaint contained the following allegations:

That on March 1, 1926, a petition asking for the road in question was filed by Edward Simon and 162 others, as petitioners, with the board of commissioners of Lake county. Following the filing of the petition, proceedings were had in accordance with the law commonly known as the Three Mile Gravel Road Law (Burns' Ann. St. 1926, § 8388). On April 6, 1926, a remonstrance was filed to said petition by Elmon E. Cole and 206 others, including the appellant. That the remonstrance was signed by a greater number of freeholders and voters of said township than had signed the petition. That upon the filing of said remonstrance, the board of commissioners of Lake county was then and there deprived of jurisdiction to order said road improved without holding an election therefor to authorize the same, and was then and there required by law to dismiss the petition at the cost of the petitioners, and was then and there wholly without jurisdiction to proceed to order said road improved by reason of said petition. On April 26, 1926, the petitioners appeared before the board of commissioners and moved that the remonstrance be stricken out and held for naught for the reason that the remonstrance did not contain a greater number of legally qualified signers than the petition. That the board of commissioners unlawfully struck out same and unlawfully caused to be entered upon its records the following entry, to wit:

“Come now on the 26th day of April, 1926, the petitioners for the improvement of said Edward Simon et al. road in North township, by their attorneys Tinkham & Galvin, and move that the remonstrance, heretofore filed against the improvement of said highway, be stricken out, disregarded, and held for naught, for the reason that said remonstrance does not contain a greater number of legal signers than the petition, i. e., freeholders and voters of said township, county, and state. And the said board of commissioners of the county of Lake and the state of Indiana, having heard the evidence and being fully advised, finds for the petitioners, and that said remonstrance does not contain more legally qualified signers than the petition hereinbefore filed by said petitioners, and that said remonstrance is overruled and dismissed at the cost of said remonstrators, and held for naught.”

That the board of commissioners unlawfully caused said entry to be made and entered of record on its minutes, notwithstanding that said board and each member thereof then and there knew and had actual knowledge of the fact that the remonstrance was signed by a greater number of freeholders and voters of North township than had signed the petition. That the action of the board of commissioners in striking out the remonstrance was illegal and void and beyond the jurisdiction of the board. That the defendants Wallace, Crawford, and Ainsworth had been appointed by the commissioners to view said road and report thereon. That the board of commissioners and other defendants had no authority to proceed further with the construction of said road. That the plaintiff was a taxpayer, and that unless the defendants were enjoined from proceeding with the construction of said road he would be greatly injured thereby, and that he was without any adequate remedy at law save and except his suit to restrain and enjoin the defendants from further proceeding with the construction of said proposed highway under said petition.

Section 8388, Burns' 1926, as to a remonstrance, in a proceeding of the kind under consideration, provides as follows:

“Provided, that if, within twenty days after the day set for the hearing of said petition, there shall be filed with the board of commissioners, a remonstrance, signed by a greater number of the freeholders and voters of the township or townships to be affected by such petition than appear upon said petition, asking that said highway, three miles or less in length, shall not be opened or improved as therein asked, then said board of commissioners shall not order said road improved and said petition shall be dismissed at the cost of the petitioners. But if no...