On Petition for a Rehearing.
A petition for a rehearing, supported by an earnest argument, has been filed in this case, in which it is insisted that this court erred in the opinion heretofore rendered, in this :
First. In holding that an action will not lie to enjoin the *432collection of an illegal assessment to aid .in the construction of a free gravel road until the legal assessments have been paid, where the legal and illegal tax has been so commingled as that they can not be separated.
Second. In failing to decide that an appeal will not lie from a proceeding' to establish and construct a free gravel road.
The contention of the appellant is that the viewers appointed by the board of commissioners to view the road in. controversy, and estimate the expense of performing the work petitioned for, .in estimating such expense took into consideration the construction of certain bridges which could not be constructed under the law providing for free turnpike roads, and that the viewers appointed to apportion the estimated costs of such improvement included in the amount apportioned against the appellant’s land the cost of constructing such bridges, and that the cost of constructing the bridges is so blended and commingled with the legitimate expenses that it can not be ascertained and separated. It is contended that by reason of the facts above stated the whole assessment is void.
When the opinion was prepared in this.case we did not think, nor do we think now, that the rules applicable to an ordinary tax had any application to cases of the class to which this belongs.
Under the provisions of section 5092, R. S. 1881, the board of commissioners are required to appoint three disinterested freeholders of the county, whose duty it is to make a report to said board at its next regular session, containing, among other things, an estimate of the costs of the improvement sought to be made. By the provisions of section-5096, the board are further required to appoint three other disinterested freeholders of the county, whose duty it is, upon actual view, to apportion the estimated expenses of the improvement upon the real property embraced in the order for the improvement, according to the benefits derived therefrom, and to make re*433port thereof to the county auditor. After the filing of such report the auditor is required to notify those interested. It is made the duty of the board of commissioners, after such notice has been given, to hear any objections that may be made thereto, and if no sufficient reason is shown why it should not do so, they are required to approve and confirm the report, and order the amount due from each tract of land to be assessed against the same.
The order of the board of commissioners approving and confirming the report has the force and effect of a judgment against the owner of the land thus notified, in so far as it affects the land. This judgment is as binding upon the parties as the judgment of any other court of competent jurisdiction upon the finding of the court or the verdict of a jury. If any owner of land assessed has any valid objection to the assessment it is his duty to avail himself of such objection, when brought into court for that purpose, and if he fails to do so the judgment estops him from making such objection many collateral proceeding like the one before us. Million v. Board, etc., 89 Ind. 5; Osborn v. Sutton, 108 Ind. 443; White v. Fleming, 114 Ind. 560.
It will thus be seen that the authorities applicable to an ordinary tax, levied without notice to the parties to be affected thereby, have no application to this case.
As no effort was made to appeal the proceedings, resulting in the assessment which the appellant seeks to enjoin, we do not think the question as to whether an appeal does or does not lie from such a proceeding is involved in this case. Nor are we able to perceive how that question can affect the •controversy here waged. Assuming that no appeal lies from such proceeding, as contended by the appellant, it follows that the Legislature has made the findings and judgments of the board of commissioners, in matters of this kind, conclusive. The rule which renders the judgments of a court of competent jurisdiction impervious to collateral *434attacks, applies as well where there is no appeal as to cases where appeals are allowable. This being so, the question as to whether an appeal lie's from a proceeding to establish a free gravel road is wholly immaterial where judgments of the board of commissioners are attacked collaterally. We do not think we erred in the matter of which complaint is made.
Filed March 13, 1891.Petition overruled. ■