Waugh v. Board of Commissioners of Montgomery County
| Decision Date | 15 March 1917 |
| Docket Number | 9,785 |
| Citation | 115 N.E. 357,64 Ind.App. 123 |
| Parties | WAUGH v. BOARD OF COMMISSIONERS OF MONTGOMERY COUNTY ET AL |
| Court | Indiana Appellate Court |
From Montgomery Circuit Court; Jere West, Judge.
Action by James M. Waugh against the Board of Commissioners of Montgomery county and others. From a judgment for defendants the plaintiff appeals.
Affirmed.
Chase Harding, for appellant.
Thomas & Foley, Kennedy & Kennedy and Johnston & Johnston, for appellees.
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The complaint originally filed was superseded by an amended complaint in two paragraphs, the second of which was withdrawn, leaving an amended first paragraph, which will be hereinafter referred to as the complaint.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. That 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. The petition, omitting caption and unnecessary detail in description, and names of signers, is as follows:
(Here follow the names of the signers--seventy-four in all.)
Said auditor endorsed the petition for hearing on June 3, 1913, and caused to be published and posted a notice setting forth a copy of the petition, which notice was as follows:
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 proceedings 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:
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:
The complaint then avers that, following this copy of notice, the record recites that the "Sheriff, on May 7th, 1913, posted copies of said notice at three livery stables and at the door of the Court House, 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...
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