Waugh v. Bd. of Com'rs of Montgomery Cnty.

• Decision Date: 15 March 1917
• Docket Number: No. 9785.,9785.
• Parties: WAUGH v. BOARD OF COM'RS OF MONTGOMERY COUNTY et al.
• Court: Indiana Appellate Court

64 Ind.App. 123

115 N.E. 356

WAUGH

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

No. 9785.

Appellate Court of Indiana, Division No. 1.

March 15, 1917.

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Action by James M. Waugh against the Board of Commissioners of Montgomery County and others. From judgment for defendants, plaintiff appeals. Affirmed.Chase Harding, of Crawfordsville, for appellant. Thomas & Foley, Kennedy & Kennedy, and Johnston & Johnston, all of Crawfordsville, for appellees.

HOTTEL, J.

This is an appeal from a judgment in favor of appellees in an action brought against them by appellant, in which he sought to have a certain judgment of appellee board of commissioners, ordering a free gravel road improvement, declared void and appellees enjoined from going ahead with the improvement therein ordered.

The complaint originally filed was superseded by an amended complaint in two paragraphs, the second of which was withdrawn, leaving an amended first paragraph, which will be hereinafter referred to as the complaint. A demurrer to this complaint was sustained, and this ruling is here assigned as error and relied on for reversal. The complaint sets out in detail and in consecutive order the substance, or an exact copy, of the respective pleadings and files in said case, and the record of the proceedings had before said board. We indicate only those averments which disclose its theory and the infirmities which, appellant claims, make it vulnerable to the attack made upon it in the trial court. The averments which indicate its theory are to the following effect, viz.: Appellant is a taxpayer and voter of the township in which said highway is located, and is the owner of taxable property therein which will be affected by said proceeding, in that he will be liable for taxes therefor; that said proceedings and judgment are wholly void and of no effect for the following reasons: (1) Because the notice given therein of the filing of said petition, which the statute makes a necessary condition precedent to jurisdiction, was invalid and not sufficient to confer jurisdiction over the persons, taxpayers, and voters, appellant included, who, under the law, were entitled to such notice. (2) Because said board had no jurisdiction of the subject-matter affected by its judgment. The appellees are threatening to proceed with said improvement and will cause great liability and expense to appellant and other taxpayers unless enjoined from so doing. If appellant stands by and allows said work to proceed, he will be thereby estopped from contesting the validity of said proceeding or the taxes levied, for which he will have no legal remedy, etc.

The facts disclosed by the complaint affecting such jurisdictional questions are, substantially, as follows: On May 5, 1913, Albert D. Thomas and others, claiming to be voters and freeholders of Union township, said county, filed with the auditor of said county their petition for the improvement of a certain highway in said county. Said petition, omitting caption and unnecessary detail in description, and names of signers, is as follows:

“To the Honorable Board: *** The undersigned petitioners *** show *** that they are all resident freeholders and voters of Union township; *** that *** (they) desire the improvement of a certain highway in said township, described as follows, to wit: Beginning in the center of the Crawfordsville and Greencastle free gravel road; *** running thence west approximately three hundred feet along and upon the Crawfordsville and Terre Haute road; thence in a southwesterly direction following said Crawfordsville and Terre Haute road as laid out; *** thence proceeding in said direction with said *** road to the half section line *** and ending at said half section line *** on an improved free gravel road, being a distance approximately of two and nine-tenths miles, all in Union township. ***

Petitioners respectfully ask your honorable body to improve said *** highway by grading,draining and paving with stone, gravel, cement or other road paving material.

*** (They) further represent and show that said highway herein asked for to be improved connects at each end thereof with a county free gravel road. We recommend that the width of said highway be *** forty feet. *** (Our italics.)

We *** ask that an order be made for the improvement of said highway without first submitting the question of said improvement to the voters of said township.” (Here follow the names of the signers, 74 in all.)

Said auditor indorsed said petition for hearing on the 3d day of June, 1913, and caused to be published and posted a notice setting forth a copy of said petition, which notice was as follows:

“Notice of presentation to the board of commissioners of Montgomery county, of Indiana, of a petition praying for the improvement of a public highway in Union township, said county and state.

Notice is hereby given to the freeholders and voters of Union township, Montgomery county, Indiana, that Albert D. Thomas et al. has filed in the office of the auditor of Montgomery county, Indiana, their petition addressed to the board of commissioners of said county, asking that a certain highway therein set out be graded, drained and paved with stone, gravel or other road paving material, and which petition is in the words and figures following, to wit: (The above petition is here set out.)

You are further notified that I have designated the 3d day of June, 1913, as the day when said petition will be presented to the board of commissioners. ***

In witness whereof, I have hereunto set my hand and affixed my official seal this 6th day of May, 1913. Bennett B. Engle,

Auditor of Montgomery County, Ind.”

It is then averred that such notice was published on the 9th and 16th days of May, 1913, in the Crawfordsville Review, a daily newspaper; that the sheriff caused a copy of said notice to be posted at three livery stables in Crawfordsville, and one at the door of the courthouse in said city; that such was the only notice published or posted or in any way given of said proceedings; that a copy of said notice, together with a purported proof of publication thereof, was placed among the files of said proceeding in the office of the auditor, but such notice was not in fact filed, and the purported proof thereof was not in fact sworn to; that the jurat of the auditor, or of any other person, was not attached thereto, and no proof of the publication was in fact made; that the purported proof of notice attached to the copy of said notice placed on file in the auditor's office was a partially printed and partially written statement in the words and figures following:

“Proof of Publication.

State of Indiana, Montgomery County

Montgomery Circuit Court.

B. F. Merrell of lawful age, being duly sworn on his oath, says that he is manager of the Crawfordsville Review, a newspaper of general circulation, printed and published in the county aforesaid, and that the notice of which the attached is a true copy, was duly published in said paper for two weeks successively, the first insertion of which was on the 9th day of May, 1913, and the last on the 16th day of May, 1913. B. F. Merrell.

Subscribed and sworn to before me this - day of -, 191-. -.”

It is then averred that on June 3, 1913, said petitioners presented said petition to said board and offered proof that said petitioners were qualified voters and freeholders, etc., and said board, without any proof of the publication of said notice as required by law, assumed to take jurisdiction of said proceeding and attempted and pretended to make orders therein and to name viewers, and ordered that the improvement be made without the submission of the matter to the voters, etc., that said board caused a record to be made of their proceedings, which record recites that said petitioners appeared in person and by their attorneys, that such petition was filed, and that the auditor fixed the date of the hearing thereof, as above set out, and contains the following further recital:

“And said petitioners now file with said auditor *** and with said board of commissioners *** and present to said board of commissioners proof of the publication and posting of the notice of the pendency of said petition, and of the time when the same would be presented to said board, *** said proof setting forth a copy of said petition, which proof consists of several affidavits accompanied by an exact copy of said notice, which said notice reads in the words and figures as follows, to wit:

‘Proof of Publication

‘State of Indiana, Montgomery County.

‘B. T. Merrell of lawful age, being duly sworn on his oath says that he is manager of the Crawfordsville Review, a newspaper of general circulation, printed and published in the county aforesaid, and that the notice, of which the attached is a true copy and marked Exhibit A, was duly published for two weeks successively, the first insertion of which was on the 9th day of May, 1913, and the last on the 16th day of May, 1913. B. T. Merrell.

‘Subscribed and sworn to before me this 28th day of May, 1913.

‘Bennett B. Engle,

‘Auditor of Montgomery County.”’

The complaint then avers that, following this copy of notice, the record recites that the “sheriff, on May 7, 1913, posted copies of said notice at three livery stables and at the door of the courthouse, all in the city of Crawfordsville”; that no notice with the jurat of said auditor thereon was in fact filed, and no proof of notice was filed; that the only paper presented in connection with said proof of publication was said unsworn statement before set out; that said record, reciting that such notice and proof of notice was filed and setting forth that the same was sworn to May 28, 1913, and that such jurat was signed by Bennett B. Engle, auditor, is in fact false; that thereupon said board attempted to order the construction of said improvements and to take the...