Zintsmaster v. Aiken

Monks, J. This proceeding was commenced in April, 1903, by filing a petition, before the Board of Commissioners of the County of Allen, to construct a drain commencing in said county and ending in Huntington county. Said board of commissioners in January, 1906, made an order setting aside the report of the viewers made in said proceeding, for the reason that the same was “not according to law,” and dismissed said proceeding for want of prosecution. Prom this judgment the petitioners appealed to the Allen Circuit Court. The venue of the cause was changed to the Adams Circuit Court, where, on April 20, 1907, the court overruled all motions heretofore filed to dismiss the appeal herein, and ordered that the cause be “certified back to the Board of Commissioners of the County of Allen to proceed in accordance with the law, and that said board appoint viewers or drainage commissioners to file an amended report.” Said board of commissioners, pursuant to said order of the Adams Circuit Court, appointed “drainage commissioners to file an amended report.” Afterwards, on September 6, 1907, said drainage commissioners filed their report as ordered by said board. Notice was given that said report would be heard on October 4, 1907. The hearing of said report was continued to October 30, 1907, when the board, on motion, rejected the report of the drainage commissioners, and in January, 1908, rendered final judgment that the proceeding be dismissed, for the reason that the drainage law of 1907 (Acts 1907, p. 508), which took effect April 10, 1907, “repealed the law under which said proceeding was had,” and therefore left said board without jurisdiction over the subject-matter thereof. Prom this judgment appellants appealed to the court below, where the proceeding was dismissed and final judgment rendered against the appellants for the same reason. This ruling of the court is called in question by the assignment of errors, [272] No order or judgment establishing said work had ever been made by the board of commissioners. It is insisted by appellants: (1) “That pending proceedings like the one before us were saved by section twenty-one of the act of 1907, supra, the same as by section fourteen of the drainage law of 1905 (Acts 1905, p. 456, §5635 Bums 1905); (2) that appellees are bound by the judgment of the Adams Circuit Court, so that they are estopped to deny that the board of commissioners had jurisdiction when the cause was remanded by the Adams Circuit Court. ’ ’ 1. It is true that the act under which this proceeding was brought was repealed by section fourteen of the drainage law of 1905 (§5635, supra), but pending proceedings, like the one before us, were not affected thereby, because of the saving clause in said section, which provided that such “proceedings and all remedies in relation thereto shall be concluded and be effective in all respects as if this act had not been passed.” In other words, pending proceedings for the construction of drains, “in which there is no attempt to and which will not lower or affect any lake or body of water that has to exceed ten acres of surface at high-water mark,” were to be concluded the same as if the act under which they were brought had not been repealed. 2. Section twenty-one of the drainage law of 1907 (Acts 1907, p. 508), however, repeals all laws and parts of laws heretofore enacted in relation to drainage, “provided, any pending proceedings shall be continued under this act, except that all proceedings which shall have been commenced under and in accordance with an act-entitled ‘An act concerning drainage,’ approved March 6, 1905, shall be concluded and determined in accordance with all of the provisions of said act.” Said section twenty-one of said act of 1907 expressly repealed the act under which this proceeding was brought, and the same cannot be concluded thereunder, because the saving clause provides that the same shall be continued under said act of 1907. Unless, [273] therefore, said act of 1907 contains provisions under which boards of commissioners are authorized to construct drains extending into two or more counties, hoards of commissioners have no jurisdiction of such proceedings, and the court below did not err in dismissing said proceeding. Under the provisions of section seventeen of the act of 1907 (Acts 1907, p. 508, §6151 Burns .1908), boards of commissioners have jurisdiction of drainage cases only where the “proposed work of drainage and the lands, highways, easements, public grounds and cities, towns or townships to be affected thereby are wholly within one county.” There are no provisions in said act of 1907 in regard to proceedings before boards of commissioners under which this proceeding could be concluded by the Board of Commissioners of the County of Allen and the ditch constructed. 3. Under said act of 1907 boards of commissioners have no jurisdiction of the subject-matter of proceedings to construct drains extending into two or more counties. It is evident, therefore, that the parties to the proceeding cannot, by agreement, waiver or under any rule of estoppel give jurisdiction of the subject-matter of this proceeding to the Board of Commissioners of the County of Allen. 4. The fact that the Adams Circuit Court overruled all motions to dismiss the appeal, and certified the case back to said board of commissioners, with instructions to “proceed according to law,” did not estop appellees from insisting that said board of commissioners was deprived of jurisdiction of said cause by the repeal of the law under which it was brought. As said board of commissioners had no jurisdiction of the subject-matter of said proceeding after the taking effect of said act of 1907, it had no power to take any step for the construction of said ditch after that time. [274] 5. [273] It is next claimed by appellants that this proceeding is [274] saved by §243 Burns 1908, §243 R. S. 1881. Said section, as the title of the act shows, was enacted to save pending proceedings at the time it was enacted in 1852 (1 R. S. 1852, pp. 430, 431), as this court held in the case of Taylor v. Strayer (1906), 167 Ind. 23, 30, 119 Am. St. 469. 6. Appellants next insist that, even if the board of commissioners had no jurisdiction of said proceedings after the act of 1907, supra, took effect, when “the cause by appeal reached the court below it should have overruled said motions to dismiss said proceedings for want of jurisdiction in the board of commissioners, and proceeded to complete said drain under said act of 1907, because said act gave circuit and superior courts jurisdiction over proceedings to construct ditches extending into two or more counties. It is settled in this State that the jurisdiction of the circuit or superior courts to dispose of a proceeding appealed thereto by determining the same on its merits depends upon whether the tribunal from which the appeal was taken had jurisdiction thereof. Myers v. Gibson (1899), 152 Ind. 500, 506, and cases cited. It is evident that the board of commissioners had no jurisdiction of the proceedings after said act of 1907 took effect, and that the court below did not err in sustaining the motion to dismiss the same for want of such jurisdiction. Judgment affirmed.