Baublett v. Strickler

131 N.E. 1, 190 Ind. 548, 1921 Ind. LEXIS 126

• Court: Indiana Supreme Court
• Decided: May 13, 1921
• Docket: No. 23,539
• Status: Published

Opinion

Ewbank, J.

— The appellees petitioned to have a public dredge ditch cleaned, under the provisions of Acts 1917 p. 384, §6162q2 et seq. Bums’ Supp. 1918. The circuit court docketed the petition and referred the matter to the drainage commissioners of the three counties into which the ditch extends. The drainage commissioners made a report estimating the cubic yards of excavation, and apportioning the cost to the several tracts of land which they reported to be affected. A hearing before the drainage commissioners on the day fixed for filing the report resulted in some changes, modifying the assessments against some of the lands reported affected. An appeal was duly taken to the circuit court, where the appellants filed numerous motions, both before and after the trial, all of which were overruled, and after a hearing the court ordered the ditch cleaned as reported by the drainage commissioners. The errors properly assigned in this court are that the trial court erred in overruling the motions of appellants for a new trial, and to strike out part of the report, respectively.

1. That a designated statute is unconstitutional, or is in conflict with a certain section of the Constitution of the state or of the United States, without pointing out the ruling complained of as having been made in violation of the rule of law so asserted, is not a proper assignment of error, and presents no question. Pittsburgh, etc., R. Co. v. Town of Wolcott (1904), 162 Ind. 399, 401, 69 N. E. 451; Ewbank’s Manual (2d ed.) §133.

There are many defects in appellants’ brief, among which are that it does not set out either of the motions referred to as having been overruled, nor state that appellants reserved an exception to any ruling complained of, and that the “points and authorities” are confined solely to the proposition that the acts of 1917 (Acts 1917 p. 384, supra,) is unconstitutional, without suggesting how the question of its constitutionality arose in the trial court or how it is presented for decision by the record before this court. Ewbank’s Manual (2d ed.) §§181, 181b.

2. Section 2 of the act, supra, under which this proceeding was commenced and prosecuted, provides that the apportionment and assessments as made by the drainage commissioners upon the hearing of objections to their report “shall be final and conclusive, unless appealed from in ten days.” §6161r2 Burns’ Supp. 1918. And §3 of the act, supra, provides that, in case an appeal is taken from the drainage commissioners, “the court hearing said appeal may confirm the apportionment of assessments, change, modify or equalize the same, and its decision upon such appeal shall be final and conclusive.” §6161s2 Burns’ Supp. 1918. This amounts to á provision that in proceedings of this character there shall be no appeal to the Supreme Court; and where the statute has denied the right of appeal to this court such an appeal cannot be maintained. Collins v. Laybold (1914), 182 Ind. 126, 134, 104 N. E. 971; Bemis v. Guirl Drainage Co. (1914), 182 Ind. 36, 54, 105 N. E. 496; Stockton v. Yeoman (1912), 179 Ind. 61, 65, 100 N. E. 2.

If the drainage commissioners and the circuit court have acted under authority of a statute which appellants believe to be invalid, and have thereby infringed upon what.appellants believe to be their constitutional rights, the acts complained of must be challenged in some form of proceeding in which an appeal to the Supreme Court is allowed by law before this court can decide whether or not the statute under which they acted is constitutional.

The appeal is dismissed.