Montgomery v. Wasem

On Petition for a Rehearing!.

Elliott, J.

In so far as the appellant’s complaint challenges the sufficiency of the notice it is unquestionably a collateral attack, and as there is some notice, and that notice has been adjudged sufficient by the tribunal invested in the first instance with the authority of determining jurisdictional facts, the attack is unavailing. This has been the steady ruling of this court since the case of Evansville, etc., R. R. Co. v. City of Evansville, 15 Ind. 395. In addition to the many cases cited in our former opinion, we cite Prezinger v. Harness, 114 Ind. 491; Adams v. Harrington, 114 *352Ind. 66 ; Hackett v. State, etc., 113 Ind. 532; Ely v. Board, etc., 112 Ind. 361; Kleyla v. Haskett, 112 Ind. 515; Hume v. Conduitt, 76 Ind. 598.

There was, we must conclude upon the strength of this long settled rule, authority to hear and determine the original case submitted to the court for judgment, and, of course, the judgment is invulnerable, no matter how many errors and irregularities may have intervened, as against a collateral attack.

Another consequence follows from the rule we have stated, and that is this: There was some authority for the proceedings of the commissioners and officers, and these proceedings were not wholly destitute of validity. The case is, therefore, very easily discriminated from one in which there is an entire absence of authority. If there had been no attempt to proceed under the law, or an utter want of jurisdiction, we should have before us a case of a different class, but there was an attempt to proceed under the law and there was jurisdiction.

It is said, in the very able brief on the petition for rehearing, that as there is no mode of attacking the acts of the auditor, it necessarily results that injunction will lie. But we think this proposition does not meet the point which obstructs the appellant’s Avay to success. As we understand the record, the auditor did not perform an independent ministerial act, but simply executed, as it was his duty to do, the order of the commissioners’ court. A ministerial officer, who is engaged in executing an order of court, and obeys the order, can not be enjoined, nor can an officer who does what the law commands be restrained by injunction. Smith v. Myers, 109 Ind. 1. To be sure, the order must be-made in a case where there is jurisdiction, and the officer must do rightfully what it directs. Here there was a prior order which authorized the auditor to do the act of which appellant complains, and the only question is whether he so far disobeyed the law as to render void the entire assessment. It *353may well be doubted whether, in any case, where a discretion is committed to an officer, his acts can be impeached without proving fraud or mistake. If the auditor erred in the mode of awarding the contract, or erred in determining that the work was completed, it may well be doubted whether such errors could be corrected by judicial intervention after the work was done, since official discretion is seldom controlled by the courts. Davis v. Lake Shore, etc., R. W. Co., 114 Ind. 364; Weaver v. Templin, 113 Ind. 298; Leeds v. City of Richmond, 102 Ind. 372; City of Kokomo v. Mahan, 100 Ind. 242; Anderson v. Baker, 98 Ind. 587; Ricketts v. Spraker, 77 Ind. 371; City of Fort Wayne v. Cody, 43 Ind. 197; Mayor, etc., v. Roberts, 34 Ind. 471; Smith v. Corporation of Washington, 20 How. 135; Davis v. Mayor, 1 Duer, 451.

But we do not deem it necessary to decide how far the commissioners or the auditor were vested with discretionary powers, for we think it enough to affirm that there was jurisdiction in the original proceedings, that there was authority of law to execute the original judgment, and that the officers assumed to proceed under the original judgment and subsequent order. Having affirmed these facts to exist, we come to the controlling question, and that is this: Can the land-owner, after the completion of the work, escape payment of the benefits without tendering, or offering to tender, the amount which in equity the contractor should receive ? It is settled in' analogous cases, that where a tax has been levied, although the officers have not done their duty, the amount admitted to be owing must be tendered and brought into court;. but if the amount can not be ascertained, and that fact is sufficiently pleaded, there may be an offer to do equity. This offer, however, will not be sufficient unless it clearly appears that no tender can be fully made, for where a tender can be made it must be a legal tender, with all its incidents. Morrison v. Jacoby, 114 Ind. 84. In this case *354we have, as fully as in any of the cases cited in the original opinion, the foundation for a valid and enforceable assessment, and there is no conceivable reason why the plaintiff,, who seeks to avoid payment of the lien, should not have the same rule applied to him. as in other assessment cases. The cases do apply that rule, and, as we are well satisfied, do rightly apply it to drainage assessments. Prezinger v. Fording, 114 Ind. 599; Prezinger v. Harness, 114 Ind. 491.

But we have in this case another element of controlling importance, and that is the fact that the appellant, with notice of the work, suffered it to go on to completion without objection. As we have said, there was jurisdiction, and an assumption of authority under the law, and this failure of the appellant to object operates as an estoppel. This question was presented in a drainage case, that of Peters v. Griffee, 108 Ind. 121, much as it is here, and it was held that the land-owner was estopped. Many authorities are there cited, and the later case of Prezinger v. Harness, supra, follows and applies the rule there laid down. In the earlier case of Flora v. Cline, 89 Ind. 208, the rule was'applied in a drainage case. In Taber v. Ferguson, 109 Ind. 227, and in City of Logansport v. Uhl, 99 Ind. 531, authorities are collected and examined, and the same general rule declared and enforced. In Ross v. Stackhouse, 114 Ind. 200, the question was' again considered and decided, and in Davis v. Lake Shore, etc., R. W. Co., supra, the rule was declared to be established and to be applicable to cases in principle the same as the one under examination.

As decided in the Indianapolis, etc., R. W. Co. v. State, ex rel., 105 Ind. 37, and Hackett v. State, etc., 113 Ind. 532, the original order still remained and was not vitiated by the errors and irregularities in the subsequent proceedings, so that there was a sufficient foundation for the proceedings, and, as the work was done under them, the presumption, in the absence of countervailing facts, must be that some benefit *355accrued to the laud-owners. This is the theory upon which the decision in Baker v. Clem, 102 Ind. 109, proceeds, and we have no doubt that it is the true one.

The fact that a judgment was entered directing that a ditch be constructed and that assessments be levied, implies, in itself, that the land-owners would be benefited by its construction. The right of the commissioners to make the order for the assessment depends upon the benefit to landowners, and it must be presumed that these sworn officers did their duty, and from this presumption results the conclusion that appellant’s land was benefited. This presumption makes a prima facie case, and a prima facie case stands until overthrown. Louisville, etc., R. W. Co. v. Thompson, 107 Ind. 442; Bates v. Pricket, 5 Ind. 22.

It is important to keep in view the fact that title to land is not in question in such cases as this, and that the ultimate question is, shall the assessment be paid ? If title passed without sale immediately upon the completion of the assessment, it could be much more forcibly insisted that it would be proper to apply the old rule that some of the courts enforce in cases of tax titles •, but, in such a case as the one before us, title does not pass until after sale at public outcry, or, at least, until after public notice, so that the question is not whether the contractor shall take title at once, for the question is whether he shall recover compensation for his work. It is evident, therefore, that the controlling rule we lay down here, and have laid down in other cases is, that a land-owner may, by standing by in silence, estop himself from repudiating the assessment, not that he may estop himself from defending his title. Before the question of title comes in issue other steps must be taken, but even in eases where title does come in issue it is no more than just that he who asks equity should do equity by paying the man who has done' the work the value represented by the benefit which the owner’s land receives. After all, whether title be in issue or not, the *356simple question is whether the land-owner, who stands by, shall be estopped from avoiding tender or payment of compensation.

Filed Dec. 20, 1888.

Petition overruled.