PETITION FOR REHEARING. Appellant, in support of his petition for rehearing insists that we erred in holding the action of the board of commissioners was not void and subject to collateral attack because the road as ordered improved did not coincide with the line of the road as described in the petition, but departed therefrom for a distance of about 1,200 feet where the road passed around the lake and also because the road as ordered improved did not include the west two miles of the road described in the petition. *Page 652
Appellant says the opinion in this case is in conflict withCincinnati, etc., R. Co. v. Board, etc. (1922), 192 Ind. 1, 134 N.E. 782; Stauffenberg v. Makeever (1920),72 Ind. App. 80, and Wilson v. Board, etc. (1923), 79 Ind. App. 250, 137 N.E. 783. In the first case cited, a petition had been filed with the board of commissioners for the improvement of a certain highway which crossed the railroad at grade. The petition was referred to viewers who reported in favor of improving a highway which followed a course different from the existing highway for more than half its length. The road as ordered improved crossed the railroad several hundred feet from the old crossing and at a point where the railroad track was laid on an embankment and, instead of crossing the railroad at grade, the commissioners ordered that the road at this point should cut through the railroad embankment and run under the railroad tracks. It was there held that the board of commissioners had no jurisdiction to establish and order an undergrade crossing, that the railroad had the right to choose the kind of crossing to be constructed and that such right could only be controlled by the Public Service Commission. No other question was there decided. The real purpose of the proceedings in that case was to establish a crossing where the highway would pass under the railroad track, instead of going over it at grade.
In Wilson v. Board, etc., supra, the petition was filed under § 7712 Burns 1914, Acts 1913 p. 418, and asked for the improvement of five roads which it was alleged were connected and constituted one system, with a request that they all be voted on as one road at an election to be held for that purpose. Without any amendment of the petition, the viewers, in an amended report, eliminated road No. 5. This report was approved and an election ordered as required by law whereby *Page 653 the voters were given an opportunity to determine whether the remaining four roads should be improved as one system. A majority of the ballots cast was in favor of improving the four roads as one system. Pursuant to notice, sealed bids were received for the construction of the four roads, and, without any reason being given, the board rejected the bid for the construction of the fourth road and no contract for its improvement was ever made. The jurisdiction of the board to authorize the improvement depended on the result of the election. There was no authority to amend the petition after the election and the board of commissioners had no power to treat the several roads as separate units and to let a contract for the improvement of three of them and refuse to let a contract for the other one. A sufficient reference was made to the case of Stauffenberg v. Makeever,supra, in the main opinion. Neither of these cases is in point and they are not of controlling influence in the instant case.
The petitioners were, under the statute, given the right to select the road they desired to have improved, and, having selected such road, it was for the commissioners to 3. determine whether the request of the petitioners would be granted. If the viewers and the commissioners omitted part of the road described, the petitioners could amend the petition to comply with the recommendation of the viewers, and the board having acted and ordered the road improved as described in the report, the petition will be deemed amended. As said by the court in Board, etc., v. Harrell (1897), 147 Ind. 500: "If they acquiesced in such an order by not taking proper steps to correct the same the petition would be considered as amended by the petitioners to conform to such order."
Under § 7739g Burns 1914, Acts 1909 p. 263, appellant had the right to file a remonstrance within ten days *Page 654 after the filing of the viewers' report against the 8. improvement of the road as reported, and, in case of an adverse ruling, he had a right of appeal to the circuit court. And, not having filed any remonstrance, he too will be held to have acquiesced in the report of the viewers and the action of the board in approving such report. As was said by the court in Jones, Treasurer, etc., v. Cullen (1895),142 Ind. 335, 343: "It will therefore be presumed, in aid of the order upon a collateral attack against the same, that every fact necessary to its validity existed." See, also, Gold v.Pittsburgh, etc., R. Co. (1899), 153 Ind. 232; Koepke v.Hill (1901), 157 Ind. 172, 176, 87 Am. St. 161; Gilson v.Board, etc. (1891), 128 Ind. 65, 76, 11 L.R.A. 835; Harrod v.Littell (1912), 51 Ind. App. 418, 422; Bailey v. Board,etc. (1914), 57 Ind. App. 285, 289.
Appellant next attacks that part of the opinion wherein we held the petition would be deemed amended to conform to the final order of the board, and insists that this holding is in 9. conflict with Thrall v. Gosnell (1902), 28 Ind. App. 174. Appellant makes no contention that the petition could not have been amended by the petitioners, so as to omit that part of the road which the engineer and viewers omitted from their report and which was also omitted from the order of the board. He insists that, since the court in the instant case found the facts specially, and found, as a matter of fact, that the petition was not amended, the court cannot deem the same to have been amended. We cannot concur in this contention. The rule is only applicable in cases where there has, as a matter of fact, been no amendment. The board had jurisdiction of the subject-matter and of the parties. It had the right to permit the petitioners to amend their petition by omitting therefrom that part of the road which was omitted *Page 655 from the report of the viewers. We are not without precedent in holding that, since the petitioners had the right to amend their petition by omitting that part which the viewers and commissioners omitted and since the petitioners acquiesced in the omission, the petition will, in a collateral attack on the proceedings, be deemed to have been amended. Board, etc., v.Harrell, supra. The question now under consideration was not passed on by the court in Thrall v. Gosnell, supra, where there was a direct attack on the jurisdiction of the board by a motion to dismiss which was filed with the board. The attack in that case was direct. Here it is collateral.
Petition for rehearing denied.