Ward v. Board of Commissioners of Lake County
| Decision Date | 05 August 1927 |
| Docket Number | 25,366 |
| Citation | 157 N.E. 721,199 Ind. 467 |
| Parties | Ward v. Board of Commissioners of Lake County et al |
| Court | Indiana Supreme Court |
1. HIGHWAYS.---Jurisdiction to establish or improve county highways.---Boards of county commissioners have exclusive original jurisdiction in all matters involving the establishment or improvement of public highways in their respective counties. p. 472.
2 COURTS.---A court has jurisdiction of the subject-matter when it has jurisdiction of the class of cases in which the particular case belongs. p. 472.
3. HIGHWAYS.---Duty of board of commissioners to determine sufficiency of remonstrance to road improvement.---Where the sufficiency of a remonstrance against the improvement of a road under the "Three Mile Gravel Road Law" ($8388 Burns 1926) is raised, it is the duty of the board of county commissionersto determine the question. p. 472.
4. HIGHWAYS.---In determining the sufficiency of a remonstrance against the improvement of a highway, the board of commissioners acts judicially. p. 472.
5. HIGHWAYS.---Jurisdiction of board of commissioners, how shown.---In a proceeding for the improvement of a highway before the board of county commissioners, it is not necessary that the record expressly show that the board made a finding of the facts necessary to give it jurisdiction, it being sufficient that the board acted upon the matter presented to it. p. 472.
6. COURTS.---Presumption as to the regularity of proceedings in inferior court.---Where the record of an inferior court shows affirmatively or by necessary implication that it had jurisdiction of the subject-matter and of the parties to a proceeding before it, the same presumptions are indulged as to the regularity of the proceedings as are indulged in favor of the proceedings of a court of general jurisdiction. p 472.
7. COURTS.---Lack of jurisdiction of inferior courts, how shown.---In a proceeding attacking the jurisdiction of an inferior court, lack of jurisdiction must appear upon the face of the record and cannot be supplied by allegations of the pleader inconsistent with and contrary to the record. p 472.
8 COURTS.---Collateral attack, sufficiency of complaint.---In a collateral attack on a ruling or decision of a court, the complaint must not only show that the proceeding was irregular and the ruling or judgment unwarranted, but it must show that the ruling or judgment was absolutely void. p. 473.
9. JUDGMENT.---When inferior tribunal's judgment may be attacked collaterally.---When an inferior tribunal is required to ascertain and decide upon facts essential to its jurisdiction, its judgment thereon is conclusive against collateral attack unless the want of jurisdiction is apparent on the face of the proceedings. p. 473.
10. HIGHWAYS.---Remedy of aggrieved taxpayer under "Three Mile Road Law."---Under the express provision of the "Three Mile Gravel Road Law" (8388 Burns 1926), any one aggrieved by the action of the board of commissioners in a proceeding thereunder may appeal to the circuit court of the county within ten days, and he can have no other remedy against such action. p. 473.
11. INJUNCTION.---As a general rule, one court will not enjoin another tribunal from acting in a matter over which it has jurisdiction or where there is a right of appeal. p. 473.
12. HIGHWAYS.---Remonstrator cannot enjoin highway improvement because of alleged erroneous ruling on remonstrance.---A remonstrator against the improvement of a highway under the "Three Mile Gravel Road Law," having a right to appeal from an adverse ruling on his remonstrance, cannot maintain a suit to enjoin further proceeding in the matter. p. 473.
13. HIGHWAYS.---Commissioners not required to order election as to highway improvement after holding remonstrance insufficient.---After a board of commissioners has decided that a remonstrance to a road improvement under the "Three Mile Gravel Road Law" (8388 Burns 1926) is insufficient and dismissed the same, the law does not require the board to order an election on the question of the improvement. p. 474.
From Lake Circuit Court; E. Miles Norton, Judge.
Suit by Oliver P. Ward against the Board of County Commissioners of Lake county and others to enjoin the improvement of a highway under the "Three Mile Gravel Road Law." From a judgment for defendants, the plaintiff appeals.
Affirmed.
William J. Whinery, for appellant.
John W. Wake and Tinkham & Galvin, for appellees.
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, Indiana. 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." 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 costs 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 and 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.,...
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