Green v. Beeson

Frazer, J. The question first to be disposed of in this case is as to the sufficiency of the complaint. The substantial allegations of it were as follows: That the plaintiffs respectively own lands within three-fourths of a mile on either side of a turnpike, located partly in Fayette and partly in Wayne county, which is being constructed by a pretended corporation attempted to be organized under the act of March 6th, 1865, for the con [9] struction of gravel and turnpike roads; that the turnpike to be constructed by the supposed' corporation is only four miles long, and within its necessary length of five miles embraces one mile of turnpike already constructed and belonging to another corporation; that taxes were levied upon the said lands of the plaintiffs for the construction of said four miles of road. The relief sought was an injunction to restrain the collection of such taxes. Such a lapping of one turnpike upon another, to obtain the distance of five miles, was an attempt to evade rather than satisfy the eighth section of the act requiring that no road made in pursuance thereof shall be less than five miles in length. Acts 1865, p. 92. If it might be done for a distance of one mile, it might be for any distance. • It is altogether and expressly forbidden by the letter and spirit of the statute. But it is urged, that the boards of commissioners having permitted the organization of the turnpike company, the matter is not longer open to inquiry. ' This position is untenable. The commissioners were in the exercise of a special statutory power; they must execute that power as it is given; they cannot exercise it in disregard of the statute which confers it, and especially where that statute expressly forbids them to do so; and any attempt of the kind is merely a nullity, binding nobody. A judicial proceeding where parties have a light and opportunity to be heard is very different; and in such a case a judgment which the tribunal has jurisdiction to render will bind, though it be erroneous. But in the case before us, as stated in the complaint, the commissioners had no jurisdiction to authorize the corporation. The proceeding before them was ex parte, nobody was required to be notified. It would be monstrous if action had under such circumstances should be held to conclude further inquiry. But it will be observed that the statute under which the commissioners acted expressly authorizes them to determine only one question, to wit: whether the proposed work [10] will be of. public utility, the antecedent requirements of the first section of the act being strictly jurisdictional and necessary to put the tribunal in motion; and. the statute does not, in terms, even require the board to ascertain whether these jurisdictional facts are true, though they must undoubtedly be stated in the petition, and probably it was the duty of the boards to have ascertained their truth before proceeding further; and it may be that their decision on that subject would be conclusive when questioned collaterally. The Evansville, &c. R. R. Co. v. Evansville, 15 Ind. 395. But that the length of the road proposed to be constructed shall be five miles, is not a matter to be decided before authority shall be given to form the corporation. A petition by the owners of three-fifths of the real estate lying within three-fourths of a mile on each side of the proposed turnpike, stating its location and length and their desire to construct it, is all that is required to evoke the action of the tribunal. Whether or not so much of the proposed route is already occupied by a turnpike completed that five miles does not remain to be constructed, is not then an inquiry. But after the corporation is created, a restraint is imposed upon its action by the eighth section of the act. It cannot make less than five miles of road, and it must commence its work within two years and finish it within six years. If such a route is designated in its organization that there are only four miles to make, then it has no power to do anything; for it would be idle to say that it might collect money which it could not lawfully expend. And it is equally idle to say that the purchase or other acquisition of a road already made answers the l'equirement of the statute. So we are of opinion that the court below was correct in not carrying back and sustaining to the complaint the demurrer to the second and third paragraphs of the answer. What has already been said determines also that those paragraphs of the answer were bad, and that the demurrer to them was correctly sustained. We are unable to perceive why the signing of the peti [11] tion to the commissioners should constitute an estoppel in this case. Indeed,the argument for the appellants concedes as much. If the corporation cannot lawfully expend money under its peculiar organization, what equity can there be in allowing it to collect money? B. F. Glaypool and J. 8. Reid, for appellants. J. B. $ J. F. Julian, for appellees. The finding against the defendants was well sustained by tlie evidence. But we cannot sustain the finding against the plaintiffs John Ingels and Christian Pike. The case made by them was the same as that made by the other plaintiffs, except that they were petitioners for the organization of the turnpike company. It does not appear that they became members of it. Their motion for a new trial should have been granted. Judgment against the defendants below affirmed, with costs; that against the plaintiffs John Ingels and Christian Pike reversed, with costs, and cause remanded for new trial as to them.