Myers v. White , 182 Ind. 108 ( 1914 )

Spencer, J.

1.

This is a proceeding under the act of 1907 concerning the construction and maintenance of free gravel or other macadamized roads on the boundary line between counties. Acts 1907 p. 363, §§7740-7752 Burns 1914. Appellants’ amended petition, asking for the improvement of a public highway between Huntington and Whitley counties, was filed with the board of commissioners of Huntington County and there challenged by appellees’ motion to dismiss on the ground that said petition did not have “the affidavit of one or more freehold voters of some township or townships abutting such highway sought to be improved, attached, stating that the said petition or petitions are signed by seventy-five or more adult freeholders of such townships abutting such improvement prayed for, and that not less than ten are from each township.” §7742 Burns 1914, Acts 1907 p. 363. Such affidavit is required under the statute before the board of commissioners can take jurisdiction. If it should affirmatively appear from the record that the statutory requirements necessary to confer jurisdiction on the board of commissioners were not complied with, it would follow that the board of commissioners did not acquire jurisdiction, and the proceeding must originate properly in the lower tribunal. Smyth v. State (1902), 158 Ind. 332, 336; Atkinson v. Disher (1912), 177 Ind. 665, 679.

2.

The record before us has not been carefully prepared and some confusion exists as to the proper order of the various entries which it contains. It does appear, however, that subsequent to the filing of appellees’ motion to dismiss, appellants obtained leave to amend their petition before the board of commissioners and an affidavit which complies with the statute is contained in the record, although it does not immediately follow the amended petition. In the absence of a showing to the contrary, we must now assume that this affidavit supplies the alleged defect, if any, in appellants’ petition and that the board of commissioners properly acquired jurisdiction.

3.

Such further proceedings were had before a joint session of the boards of commissioners of Huntington and Whitley counties as resulted in a finding and judgment that the proposed improvement would not be of public utility. From this decision appellants perfected an appeal to the Huntington Circuit Court and from that court the cause was venued to the Wabash Circuit Court where, on motion by appellees, the appeal was dismissed. Appellees take the position that this proceeding is special in character and that, unless expressly granted by the statute, no appeal lies from the decision of the commissioners. Appellants, on the other hand, contend that where, as in this case, the duty of the hoard of commissioners involves judicial action, an appeal may he taken under §6021 Burns 1914, §5772 R. S. 1881, which provides that: “From any decision of such commissioners there shall he allowed an appeal to the circuit court by any person aggrieved.” Board, etc. v. Conner (1900), 155 Ind. 484, 495; Grusenmeyer v. City of Logansport (1881), 76 Ind. 549.

While it is true that the proceeding is special in character, yet it is clearly the legislative intent that the boards of commissioners should act in their official capacity as such commissioners. Section 6 of the act, which authorizes the filing of remonstrances against a proposed improvement and grants a hearing on such remonstrances, if any, expressly provides that “Said boards of commissioners when in joint session at such time and place, shall try the issues thus formed under the same rules and regulations as other eases are tried before boards of commissioners.” §7745 Burns 1914, Acts 1907 p. 363. From this language we must conclude that the same right of appeal which is authorized in other cases by §6021, supra, is available here.

Judgment reversed, with instructions to overrule appellees’ motion to dismiss the appeal and for further proceedings not inconsistent with this opinion.

Cox, C. J., and Myers, J., concur in result.