White v. Fleming

• Court: Indiana Supreme Court
• Writing for the Court: Howk, J.
• Citation: White v. Fleming, 114 Ind. 560, 16 N.E. 487 (Ind. 1888)
• Decision Date: 29 March 1888
• Docket Number: 13,677
• Parties: White et al. v. Fleming

16 N.E. 487

114 Ind. 560

White et al. v. Fleming

No. 13,677

Supreme Court of Indiana

March 29, 1888

Petition for a Rehearing Overruled June 19, 1888.

From the Ripley Circuit Court.

The judgment is reversed, with costs.

E. P Ferris, W. W. Spencer, J. S. Ferris and J. L. Benham, for appellants.

J. G Berkshire, J. B. Rebuck and C. H. Willson, for appellee.

OPINION

Howk, J.

In this case appellee, Fleming, plaintiff below, sued the appellants, White, Jr., treasurer, Wilson, auditor, and the board of commissioners of Ripley county, as defendants, in a complaint of three paragraphs. In each paragraph of his complaint plaintiff asked that all the defendants might be restrained and enjoined from ordering certain assessments, theretofore made against plaintiff's real estate in Ripley county on account of the improvement and macadamizing of the Versailles and Rising Sun State Road within such county, to be placed on the tax duplicate and collected, and that such assessments might be declared null and void, and for all other proper relief.

The cause was put at issue and submitted to the court for final hearing, and the evidence having been heard and the court being advised, at the defendants' request, made a special finding of the facts herein and thereon stated its conclusions of law in favor of the plaintiff. Over the several exceptions of the defendants to its conclusions of law, the court finally adjudged and decreed that all assessments made against plaintiff's real estate, for or on account of the construction of the aforesaid road, were wholly void, and that defendants, and each of them, and their successors in office, respectively, should be perpetually enjoined from collecting, or attempting to collect, the aforesaid assessments, or any part thereof, etc.

From such judgment and decree defendants have appealed to this court, and have here separately assigned errors which call in question (1) the overruling of their several demurrers to each of the first and second paragraphs of complaint, (2) the sustaining of demurrers to each of the second and third paragraphs of their answers, (3) each of the court's conclusions of law upon the facts specially found, and (4) the sufficiency of the facts stated in plaintiff's complaint to constitute a cause of action when challenged here for the first time.

We will first consider and decide the questions presented for our decision by the first of these alleged errors.

The first paragraph of plaintiff's complaint herein was in the words and figures following, to wit:

"For first paragraph of complaint plaintiff says that, on the 14th day of April, 1884, John W. Neighbert Philip Ensminger and John H. Ehlers, the county commissioners within and for the county of Ripley, and State of Indiana, came together at the auditor's office in said county and State on said 14th day of April, 1884, with nothing but an oral notice from the auditor of said county; that they caused the auditor of said county to make the following entry, viz.: 'Commissioners' court, April, special session, 1884. The board of commissioners of Ripley county, Indiana, met in special session to settle with the outgoing trustees of the several townships. Court convened in the auditor's office on Monday, April 14th, 1884, at 1 o'clock P. M. Present, John W. Neighbert, president of the board, John H. Ehlers and Philip Ensminger, commissioners, and Nicholas Cornet, auditor.'

"That said commissioners were together each day of April thereafter, 1884, until and including the 18th day of said month, but without any other notice or call than when they came together; the auditor of said county simply gave a verbal notice.

"That, while they were in said special session, on the 17th day of said April, certain citizens of Ripley county, Indiana, residing and owning real estate within two miles of the Versailles and Rising Sun State Road, being more than five in number, presented to said board of commissioners a petition for the improvement of said Versailles and Rising Sun State Road from Versailles east to the county line dividing the counties of Ripley and Dearborn, all of said proposed improvement being in Ripley county, Indiana, by laying out, straightening, grading, draining, paving, gravelling or macadamizing said road.

"That said petition was accompanied by a bond signed by freeholders of said county and State. The said commissioners, being together as heretofore stated, caused the auditor of said county to make the following named entry, viz.:

"'In the matter of the improvement of a highway in Ripley county, in the State of Indiana, in pursuance to article 8, chapter 70, of the Revised Statutes of 1881.

"'Now, at this time, come James I. Roberts, Jacob L. Benham, Reizin Johnson, James Anderson, Benjamin F. Spencer, William C. Wingate et al., and present their petition in writing for the improvement of the Versailles and Rising Sun State Road in Ripley county, Indiana, as follows, to wit: Commencing on Perry street where it crosses Main street, in the town of Versailles, Indiana, and running thence on said Versailles and Rising Sun State Road, or as near thereto as public utility and convenience may require, until it crosses the county line between the counties of Ripley and Dearborn, in section 18, town. 7, range 13, and being 8 miles in length; said improvement to be made on said road by straightening, grading, draining and macadamizing said road, in pursuance of article 8, chapter 70, of the Revised Statutes of Indiana; and it being made to appear, to the satisfaction of said board of commissioners of said county of Ripley, that more than five of the petitioners aforesaid are resident freeholders of said county of Ripley, whose lands will be assessed for the cost of said proposed improvement, and it appearing further to the satisfaction of the board that a bond has been filed with said petition, signed by Reizin Johnson, James I. Roberts, Ben. F. Spencer, William C. Wingate, James Anderson, George Shook, William C. Henderson, Henry Shulte, Mrs. Margaret Busching and Eli D. Hunter, responsible freeholders of said county, conditioned for the payment of the expense and cost of preliminary survey and report if the proposed improvement shall not finally be ordered, which bond is accepted by the board of commissioners.

"'The board of commissioners now appoint Samuel Harper, John W. Fuller and William Hyatt, freeholders of Ripley county, Indiana, as viewers, and Moritz Pegee as surveyor, who shall meet on the 15th day of May, 1884, at the auditor's office of said county, in the town of Versailles, and, after taking an oath or affirmation to faithfully and impartially discharge the duties of their appointment, shall proceed to view, lay out and straighten said road as in their opinion public utility and convenience may require, and assess and determine the damages sustained by any person or persons through whose premises said road is proposed to be straightened and improved, and do such other acts as by law required, and shall make their report to the board of commissioners at the June term, 1884.'

"That at the time said order above set out was made, said board was not in general or regular session, because the law did not provide for a general or regular session at that time; nor was there a special session, because the commissioners had not been called or notified to meet in special session by any written or printed notice by the auditor of said county, or other officer or person authorized to call them together in special session. Nor had there been an adjournment from any regular session of the board of commissioners, nor from any special session regularly convened to meet on the 14th day of April, 1884.

"But said commissioners came together without any notice, as heretofore stated, calling or notifying them to meet in special session.

"The plaintiff avers further, that John W. Fuller, Samuel Harper and William Hyatt are the only viewers appointed by said board to lay out and straighten said road as aforesaid, and further avers that the only appointment they ever received was as hereinbefore stated.

"That, on the 24th day of April, 1884, the following and only notice that was ever given of the time and place of the meeting of the said John W. Fuller, Samuel Harper and William Hyatt, the pretended viewers, was given by publication in the Ripley County Journal, and is as follows:

"'turnpike notice.

"'Notice is hereby given that John W. Fuller, Samuel Harper and Wm. Hyatt, viewers appointed at the April special term of the commissioners' court, will meet in the auditor's office at Versailles, Indiana, on the 15th day of May, 1884, to be qualified, and proceed then to view the proposed improvement and macadamizing of the Versailles and Rising Sun State Road, beginning at Versailles and running east to the county line dividing the counties of Ripley and Dearborn.

"'Given under my hand and seal at Versailles, this 23d day of April, 1884.

[seal] "'Nicholas Cornet,

"'April 24th, 1884. Auditor of Ripley County.'

"That on the first Monday of June, 1884, that being the 2d day of June of said year, and being the time fixed by law for the regular June term of the commissioners' court within and for said county of Ripley to convene, and being the only time fixed by law for the convening of said June term of said commissioners' court, the said board of commissioners did not convene together in regular session, and no court whatever was held upon that day by said commissioners; that afterwards, to wit, and without authority of law, the said board of commissioners came together on Tuesday following the first Monday in June in said year, and pretended to be in regular session, and called the...