Strieb v. Cox, Treasurer, et al.

work to contract according to the statute in such case provided, after having given public notice of such letting for two weeks in a newspaper printed and published in Grant county; that such county board appointed three disinterested freeholders of said county who, upon actual view, apportioned the estimated expense of said improvement upon the lands so found to be benefited thereby, and made their report thereof to such county auditor; that when such report was so made and filed, such county auditor gave notice of it and of the meeting of such county board to consider the same, by publication in a newspaper of general circulation in said county, for three weeks successively; that appellant well knew that such proceedings had been had, and that such assessments on his lands had been made; that, on the day named in said notice, appellant appeared before such county board and remonstrated, in writing, against said assessments on his said lands; that such county board then referred the assessments against appellant's lands and all other lands affected by said improvement to new viewers, to wit, etc., three disinterested freeholders of such county, to review and report thereon; and that afterwards, at the March term, 1883, of said board of commissioners, such reviewers made and filed their report of the estimate and apportionment of expense on all such lands, including those of appellant; that thereupon appellant again appeared before said county board and, in writing, remonstrated against his said assessments, which remonstrance was overruled by such board; and that, with appellant's full knowledge, such county board duly confirmed said assessment and apportionment. All of which proceedings were had more than thirty days before the commencement of this suit, and remained of record in full force and unappealed from.

And the appellees averred that, upon the faith of such assessment, the said road was let to contract, and was fully and finally completed, as appellant well knew, before he commenced this suit; that such bonds in his complaint named,

Strieb v. Cox, Treasurer, et al.

as appellant knew at the time, were ordered by such county board to be issued before he filed his said remonstrance; that during all the time the said road was being constructed appellant was a resident of Grant county, and in the neighborhood of such road, and knew of its construction, and made no objection thereto in any way until said road had been completed, and all the benefits to his lands from such road had been received and realized; and that part of the contract price, for the construction of said road, remained due and unpaid. Wherefore, appellees said that appellant was estopped to assert and litigate the claims and facts stated in his complaint herein, and ought not to be permitted to prosecute his action in that behalf; and they prayed judgment accordingly, and for all other proper relief.

As we have already seen, the first error of which complaint is here made by appellant, in the cause under consideration, is the overruling of his demurrer to the third paragraph of appellees' joint answer herein, the substance of which we have given.

From the facts alleged in this paragraph of answer, it is manifest that appellees have therein stated and set forth the proceedings and orders of the board of commissioners of Grant county, upon a petition duly presented to such board for the location and construction of the "Marion and Huntington Free Gravel Road," as constituting a full and complete defence in bar of appellant's cause of action, stated in his complaint herein. These proceedings and orders of such county board were shown by appellees, in the third paragraph of their joint answer, to have been duly instituted and regularly had under, and in strict conformity with, the provisions of the act of March 3d, 1877, entitled "An act authorizing boards of county commissioners to construct gravel, macadamized, or paved roads, upon petition of a majority of resident land-owners along and adjacent to the line of any road; authorizing them to issue bonds of the county, to raise money required for that purpose, and provide for the pay

Strieb v. Cox, Treasurer, et al.

ment of such bonds by taxing land adjacent to the road," etc. Acts of 1877, Reg. Sess., p. 82, et seq.; sections 5091 to 5103, R. S. 1881.

Under the provisions of the above entitled act, the boards of commissioners of the several counties in this State are clothed with original jurisdiction, and required to exercise judicial powers and duties, in relation to the location, establishment and construction of free gravel, macadamized and paved roads within their respective counties.

Under the averments of the third paragraph of appellees' joint answer, the board of commissioners of Grant county had full and complete jurisdiction of the free gravel road described in the petition, mentioned in such paragraph of answer. The presentation of this petition to such board of commissioners, as stated in such paragraph, called into exercise its jurisdiction, and required such board to determine as to the sufficiency of such petition, both in form and substance, whether or not it was signed by the requisite number of land-holders, whose lands would be assessed for the cost of the proposed improvement, and every other fact, precedent or concurrent, necessary to the granting of the prayer of such petition. Million v. Board, etc., 89 Ind. 5.

It was shown, also, by the averments of such third paragraph of answer, that proper notices were given, as required by the statute, and appellant had personal knowledge, also, of the pendency of such petition and of all the proceedings and orders of the county board had thereon; that he appeared before the board and remonstrated against and resisted such proceedings and orders; that the assessments on his lands, whereof he complains in this action, were confirmed by the county board over his written remonstrances, and that he failed to appeal from such proceedings, orders and assessments within the time allowed by law.

Upon this showing made by appellees, in the third paragraph of their joint answer herein, we are of opinion that the assessments on appellant's real estate, for the construction

Strieb v. Cox, Treasurer, et al.

of the free gravel road named in such paragraph, are valid, binding and conclusive, and can not be impeached collaterally. This is the doctrine of all our decided cases upon the subject under consideration. Evansville, etc., R. R. Co. v. City of Evansville, 15 Ind. 395; Dequindre v. Williams, 31 Ind. 444; Board, etc., v. Markle, 46 Ind. 96; Board, etc., v. Hall, 70 Ind. 469; Oppenheim v. Pittsburgh, etc., R. W. Co., 85 Ind. 471; Dowell v. Lahr, 97 Ind. 146; Baltimore, etc., R. R. Co. v. North, 103 Ind. 486; Laverty v. State, ex rel., 109 Ind. 217; Walker v. Hill, ante, p. 223.

Of course, if the proceedings and orders of the board of commissioners of Grant county, in relation to the construction of the Marion and Huntington free gravel road, and the assessments on appellant's real estate for the cost of such improvement, were void for any cause or reason, it would not be necessary to appeal from such void proceedings, orders and assessments, but the same might be attacked and impeached in any collateral suit.

It will be seen from the averments of appellant's complaint, the substance of which we have heretofore given, that it proceeds upon the theory that such proceedings, orders and assessments were and are wholly void, because the board of commissioners, for the purpose of raising the money necessary to meet the expense of constructing said free gravel road, bad issued bonds of the county to the amount of $43,000. It was alleged in the complaint that, at the time of the issue of the bonds of the county to meet the expense of such improvement, the aggregate indebtedness of Grant county already exceeded two per centum on the value of the taxable property within such county, as shown by the last assessment for State and county taxes, previous to the issue of such bonds. It is assumed that, by the issue of such bonds for the purpose aforesaid, Grant county incurred an additional indebtedness to the amount of such bonds, in direct contravention of the provisions of article 13, adopted March 14th, VOL. 111.-20

Strieb v. Cox, Treasurer, et al.

1881, of our State Constitution, and that such bonds, so issued, were void. If such assumption were correct, it might well be doubted, as it seems to us, whether the fact that the bonds so issued were void would invalidate or avoid the proceedings and orders of the county board for the construction of the free gravel road, or the assessments made on adjacent real estate for the cost of such improvement. We do not find it necessary to consider or decide the question suggested, in the view we take of the cause of action stated in appellant's complaint herein.

The bonds issued by the board of commissioners of Grant county, for the purpose of raising the money necessary to meet the expense of constructing the Marion and Huntington free gravel road, were issued under the provisions of section 7 of the above entitled act, of March 3d, 1877, as such section was amended by an act which took effect and was in force on March 3d, 1881. Section 5097, R. S. 1881. In such section as amended it is provided as follows: "For the purpose of raising the money necessary to meet the expense of said improvement, the commissioners of the county are hereby authorized to issue the bonds of the county, maturing at annual intervals after two years, and not beyond eight years, bearing interest at the rate not to exceed six per cent. per annum, payable semi-annually; which bonds shall not be sold for less than their par value. Said assessment shall be divided in such manner as to meet the payment of principal and interest of said bonds, and so be placed upon the duplicate for taxation against the lands assessed, and collected in the same manner as other taxes; and when collected, the money arising therefrom shall be applied to no other purpose than the payment of said bonds and interest: Provided, That no bonds shall be delivered, or money paid to any contractor, except on estimate of work done, as the same progresses or is completed, and said road or improvement shall be kept in repair, as other State and county roads are: Provided, further, That the amount of such bonds outstanding at any one time