State v. Roberts

76 N.E.2d 832, 226 Ind. 106, 1948 Ind. LEXIS 140

• Court: Indiana Supreme Court
• Decided: January 23, 1948
• Docket: No. 28,342.
• Status: Published

Opinions

ORIGINAL ACTION.

YOUNG, J.

This is an original action in this court by the State of Indiana against the respondent Roberts, as Special Judge, and the respondent Nesbit, as surveyor, for a writ of prohibition to stop further proceedings as against the State Highway Commission of Indiana in the drainage project involved and to prohibit them from interfering with or removing the existing structure (a culvert) at the point where the proposed drainage project crosses State Highway No. 41, and to prohibit them from carrying out that part of the order and decree in said proceeding which requires the construction of a new bridge at said point of crossing’ by and at the cost of the State Highway Commission of Indiana.

At this point we think it proper to say that the surveyor was not a proper party to this action. This court’s jurisdiction to issue writs of prohibition is strictly statutory. We issue such writs only to inferior courts for the purpose of confining them to their respective lawful jurisdictions. § 3-2201, Burns’ 1946 Replacement. There is nothing in the statute which permits us to issue a writ to an officer of the court, although the officers of the court who may be expected to act upon the authority of the prohibited action and who have notice of the writ, are bound by it. State ex rel. Spencer v. Criminal Court, Marion Co. (1938), 214 Ind. 551, 558, 15 N. E. 2d 1020, 16 N. E. 2d 888.

From plaintiff’s petition and the returns of respondents, it appears that on June 24, 1944, there was filed in the Circuit Court of Newton County a petition seeking the repair and alteration of an old drain in Washington Township, Newton County.

Our drainage law stipulates the contents of petitions for the initiation of drainage projects. § 27-104, Burns’ 1933. It provides that lands which will be affected by the proposed drainage shall be described and that the names of owners thereof, if known, shall be stated.

Under the statute no process is required when the petition is filed, but the petitioners are required to fix a day for docketing the petition and to give the owner or occupant of each tract of land described in the petition notice of the filing of such petition and the day set for docketing same. Such notice may be served by the petitioners or any person acting for them by delivering a copy to the owners or occupants of land affected, and notice by posting and by mail to non-residents is also provided. § 27-106, Burns’ 1933.

By § 27-112, Burns’ 1933, notice of hearing on the surveyor’s report is provided for. This again is not by ordinary legal process but by postal card, mailed to the owners whose names appear in the surveyor’s report of assessments, benefits and damages.

In this connection it may also be worth while to consider that under the plan and system set up for the establishment of drains such proceedings are not adversary. They are ex parte in form. Essentially they are actions in rem against the affected land and jurisdiction over the persons of the owners of such land is not necessary, as where personal judgments are sought. Substituted service is sufficient to give jurisdiction.

In the matter presented to us, the State Highway Commission is named in the petition for the new drain as the owner of Highways 41 and 16. The State Highway Commission was given the notices required by statute and a representative of the State Highway Commission attended the surveyor’s hearing. There is no contention by the State that there was any failure in any particular to follow the statutory procedure for the establishment of drains in the matter here involved.

Thereafter such proceedings were had that the surveyor in performance of his duties under the statute made his report to the court, and in said report fixed the damages and benefits caused by the said project, and made it appear that where the proposed improvement was designed to cross Highway 41 the culvert then existing would be destroyed and a new bridge of a size sufficient to give a waterway cross-section of 101 square feet would be necessary. He also made it appear that there would be no repair, underpinning or rebuilding of abutments of the culvert then existing under the old drain inasmuch as the proposed improvement was to be an open ditch and the old drain was of tile construction. It was further made to appear that the route proposed does not call for a cut-off for the purpose of shortening and straightening the old ditch.

There was later a hearing on the surveyor’s report and it was ordered and decreed by the court that the report of the surveyor be confirmed and the assessments and benefits reported be approved and that the ditch and drain be established over the route as laid out and described in the surveyor’s report, which route it appeared extended over and across Highway 41. And it was further ordered and adjudged by the court that the State Highway Commission construct and pay for the bridge necessary at the point where said ditch crosses said highway. This decree was entered on June 28, 1947, and thereafter, on July 25, 1947, this action was commenced in this court for a writ of prohibition, as first above indicated.

In its petition to us the State alleges that it was not made a party to any of these proceedings and that no notices of any character were ever served upon or furnished to the Attorney General of Indiana.

The primary .position of the plaintiff is that the court has no jurisdiction over said Commission or the subject matter of said proceeding as against said Commission and that the decree as to it is void.

If the State Highway Commission were the ordinary owner of affected real estate there would be no question of the jurisdiction of the court. It seems to us that we must reach the same answer in considering the position of the State Highway Commission. It was given by statute complete control over the State highways. It designates the work which is to be done and prepares plans, specifications and estimates for same, § 36-108, Burns’ 1933. It lets all contracts, § 36-112, Bums’ 1933, and executes same in the name of the State, § 36-114, Burns’ 1933. It has access to and power to draw upon and expend all money in the State Highway fund, § 36-109, Burns’ 1933. It is authorized to adopt its own seal and is required to use its own seal in the execution of contracts and other documents and papers as the same may be required. § 36-101, Burns’ 1933.

While, strictly speaking, the State of Indiana is the owner of state highways, or the easements and rights in the land used for such purpose, the State can act only through agents and the State Highway Commission is the authorized instrumentality of the State in the State Highway matters. For all practical purposes) the State Highway .Commission, under the act creating it, is the State of Indiana, so far as the state highways are concerned.

The matter of the establishment, maintenance and control of state highways is for the legislature and, likewise, the matter of the establishment, maintenance and control of drains and ditches is for the legislature. Chicago, etc., R. Co. v. Luddington (1910), 175 Ind. 35, 38, 91 N. E. 939.

The legislature has placed the matter of state highways in the hands of the State Highway Commission, § 36-107, Burns’ 1933, and has conferred jurisdiction over drains and ditches in the courts, § 27-104, Burns’ 1933. The establishment and control of highways and the establishment and control of drains and ditches are separate and distinct fields for legislative action, and it cannot be presumed that the legislature intended to give preference to either over the other in its field unless such intent is clearly shown by statute. The statutes on each subject should be considered in pari materia and reconciled when possible. With the finely spun web of state highways, the establishment of ditches would be difficult and often impossible if highways could not be crossed. It is true that one section of the highway statute says that high ways shall not be torn up or disturbed for any purpose by anybody without the written consent of the chairman of the State Highway Commission. § 36-121, Burns’ 1933. This statute has been construed not to vest the chairman of the State Highway Commission with power to forbid or prevent a highway from being torn up or cut through by persons lawfully entitled to do so in construction of a drain under a judgment of a court of competent jurisdiction. State v. Douglas (1924), 196 Ind. 207, 210, 144 N. E. 548.

The case just cited was an action in the name of the State of Indiana, as plaintiff, seeking to enjoin cutting through a state highway in the construction of a drain under an order of court duly made in a drainage project. In prosecuting this suit the State relied upon the section of the highway statute to which we have just referred to the effect that no highway shall be torn up or otherwise disturbed without the written consent of the chairman of the State Highway Commission. In considering this contention this court said:

“But, as we construe the statute, it was not intended to have any such effect. Ordinarily, the law imposes upon any person who tears up or cuts through a highway the duty to restore it to as good condition as it was before, the only exceptions being where such person, by contract or the judgment of the court, or otherwise, has acquired a right to cut into or through the highway without restoring it. Nothing in this act indicates a purpose to change or modify the drainage law, or to enact a law giving or taking away the right to construct public ditches under order of court in a proper proceeding for that purpose. And § 27, as we understand its meaning, does not create nor attempt to create, or empower the State Highway Director to create, any new duties or obligations on the part of persons who cut into or across a highway or tear it up for any purpose; but only gives him the right and imposes on him the duty to see that all such acts are done in conformity with the law on that subject, to which end, the highway commission may prescribe and he may enforce regulations as to the time and manner of crossing which will cause the least possible interruption to and interference with travel, and may enforce payment of the cost of restoring the highway by persons on whom the law imposes that obligation. But it does not vest in the State Highway Director or the State Highway Commission power to forbid or prevent a highway being torn up or cut into or through by persons otherwise lawfully entitled to tear it up or to cut into or through it.” (Our italics)

In the case of Byers v. Hoskinson (1924), 196 Ind. 225, 226, 147 N. E. 810, the same question again was before the court, and this court said:

“The alleged reasons for which a new trial was asked were based on the contention of counsel that the court had no jurisdiction to establish the drain and order it constructed across a state highway without first providing for the construction of a bridge across the ditch which would completely restore the highway, to the approval of the State Highway Commission. That they were in error in this contention was decided a few months ago, and we adhere to that decision. State v. Douglas (1924), ante 207, 144 N. E. 548. . . .”

In the case of Karr v. Board, etc. (1908), 170 Ind. 571, 580, 85 N. E. 1, it was contended that the drainage statutes gave courts no right to destroy highways or bridges and in discussing this question this court said:

“Counsel for appellee contend that the judgment of the Morgan Circuit Court is open to attack, on the ground that the drainage act cannot be taken to authorize the material injury or destruction of public property in use by the public. Whatever may be the rule as to such public property of a county as a court-house or jail, we are of opinion that it cannot be affirmed as a matter of jurisdiction that it is incompetent for a court to establish a public drain which would result in the serious injury or destruction of a highway bridge, for so to hold would be to affirm that the existence of such a bridge might afford an insuperable obstacle to the execution of a scheme of drainage of great importance. . . .”

It seems to us from these cases that the petitioner is in error in its contention that the court had no jurisdiction or power in a drainage proceeding to establish a ditch or drain across a highway without the consent or permission of the State Highway Commission. The statutes clearly give the court jurisdiction over the subect matter of proceedings to alter and repair a drain, § 27-120, Burns’ 1933. And the cases above cited sensibly, we think, say that the State Highway Commission shall have no power to veto such a project simply because it crosses a state highway.

The Douglas case, supra, is pertinent in the case before us for another reason. The only averment in the complaint in the Douglas case, by which any attempt was made to challenge the jurisdiction of the court to order the drain constructed, was one to the effect that the State of Indiana was not made a party nor served with notice of the filing of the petition for drainage or the report of the drainage commissioners, and that no notice thereof was given to the Attorney General. But notwithstanding this failure to make the State a party and failure to give the State or the Attorney General notice, it was held the court had jurisdiction to order the drain constructed across the highway and this court said that it knew of no law requiring that the State or the Highway Commission be made a party to such a proceeding. There was no pertinent law in effect when the drainage here involved was started which was not in effect at the time of the proceedings, in the case of State v. Douglas, supra, and if there was then no law which provides for making the Highway Commission or the State a party to a drainage proceedings there is no such law now.

However, an earlier decision and opinion by this court had indicated that the political subdivision having ownership or quasi-ownership of an affected highway should be made a party in order that the public interest may be represented, Karr v. Board, etc., supra, and we think it better practice to name the State Highway Commission in the petition and serve it with the notices required by statute and hereafter to serve copies of papers filed in drainage proceedings involving state highways upon the Attorney General pursuant to Chapter 3 of the Acts of 1945.

We hold, therefore, that the statutes clearly give the courts jurisdiction over the subject matter of proceedings to alter and repair drains, § 27-120, Burns’ 1933, and we further hold that under the State Highway Commission statute the State Highway Commission was definitely made the agent and instrumentality of the state in all matters relating to highways and it is proper and sufficient to name it in ditch proceedings involving state highways and to serve the statutory notices on it.

It is contended by the plaintiff herein that there is no right to sue the State without the State’s consent, and that if the State or the State Highway Commission, as the instrumentality of the State in all matters relating to state highways, may be named in a drainage petition it is tantamount to making the State a party to such proceedings. We hold that the legislature, by the adoption of the drainage statutes, requiring owners of affected land to be made parties, gave its consent that the State be brought into drainage proceedings where state highways will be affected by the drainage project proposed. Any other conclusion would mean that the legislature intended either that drains could not cross state highways, which we do not believe, or that the public interest in the highways would be protected by the court without representation. It is much more reasonable to think that the legislature intended that the State, by its Highway Commission, should appear as the owner of the affected highways in order that the public interest in the state highways may be protected and weighed against the public interest in adequate drainage, and consented that the State be made a party to such proceedings in that way.

It is also contended by the plaintiff that the State Highway Commission is without power to sue or be sued, and is without power to represent the State in drainage proceedings. We believe, however, that it was the intention of the legislature that the State Highway Commission be a distinct legal entity with large power and that as an incident in the exercise of its broad power over the State Highway system of Indiana it could be named in ditch proceedings where state highways are involved, and, being a proper party, could and should appear and make clear to the court its position upon controversial questions and appeal if it thinks error has been committed.

It is also contended by the petitioner that the court was without jurisdiction in the drainage matter under consideration because no copy of any petition or other paper was served upon the Attorney General, as required by ch. 3, p. 7, of the Acts of 1945, which provides that whenever any suit or action or petition is filed in any court in this state, in which the State of Indiana, or any board, commission, agency or officer of the State is a defendant, a copy of such pleading shall be served upon the Attorney General and such proceeding shall not be deemed to commence as to the State, board, commission or agency until there has been such service. This statute was approved and went into effect on February 1, 1945. The drainage proceeding under consideration was begun on June 24, 1944. The statute, therefore, was not in effect at the time this proceeding was started and there was at that time no obligation upon the petitioner in the drainage proceeding to serve a copy of its petition or any other paper upon the Attorney General.

In its petition for a writ of prohibition filed in this court, the petitioner undertakes to show that, taking into account the cost of a new bridge, the damages exceed the benefits and the project should not have been approved. These facts do not go

to the power of the court, but only to the wisdom and propriety of its decree. They are not adequate grounds for invoking the extraordinary power of this court to issue writs of prohibition against inferior courts. Our only authority to issue writs of prohibition is statutory and under the statute we may issue such a writ only to confine lower courts to their respective lawful jurisdictions, § 3-2201, Burns’ 1946 Replacement. We will not issue writs of prohibition to correct errors of trial courts if they have jurisdiction. Such errors may be corrected only by appeal. State ex rel. Mock v. Whitley Circuit Court (1937), 212 Ind. 224, 8 N. E. 2d 829; State ex rel. Williams v. Goshorn, Special Judge (1942), 220 Ind. 369, 372, 43 N. E. 2d 870. If the court had jurisdiction it had jurisdiction to act erroneously and the only remedy would be by appeal.

There remains for our consideration the question of the jurisdiction of the court to order the State High way Commission to build a bridge over the ditch involved where it crosses Highway 41. Whether or not this bridge should be built is exclusively for the determination of the State Highway Commission in the exercise of discretion vested in it by the legislature. The failure to build the bridge would in no manner interfere with the sufficiency of the drain. It would only interfere with the use of the highway, and whether or not any particular highway shall be maintained, and whether or not bridges necessary for its use shall be built, is for the State Highway Commission, and it is not within the power of the court to order the Highway Commission to do something which is in the sole discretion of the Commission, at least unless an abuse of discretion is shown. We have already indicated that the court had a right to order the drain across Highway 41, and to destroy the highway and the existing culvert at the point of crossing. It seems that the establishment of the drain in the manner ordered by the court will in this case make necessary a bridge, if the highway to be crossed is to continue in use, but whether it shall continue in use is a question for the Highway Commission.

Plaintiff contends that the cost of the bridge should be a part of the cost of the drainage project. Bridges on any state highway shall be considered as a part of the highway (§36-110, Burns’ 1933), and the cost of bridges is paid by taxation upon all taxpayers of the governmental unit responsible for the bridge and not by assessments against a few.

Rigney, Trustee v. Fischer (1887), 113 Ind. 313, 314, 315, 15 N. E. 594, presents almost exactly the same question that is before us. In it the following language was used:

“Neither the act of 1885, supra, nor any other statute, makes it the duty of the appellee, as the drainage commissioner, under the circumstances of this case, to build bridges upon public highways crossed by drains constructed by him, nor does that duty result from his office. It was his duty to construct the drain as ordered by the court, but we know of no authority which he has to construct the bridge over the drain. He has no fund which he can use for that purpose. Assessments were made upon lands benefited by the drain for the purpose of raising a fund with which to construct it, and the statute expressly provides how that fund shall be applied and expended. The law provides for the construction of bridges upon public highways by funds raised by taxation upon all the taxpayers of the municipality, and not by assessments of a few. Appellee, as the drainage commissioner, has no fund except that obtained by an assessment upon a limited number and assessed for the specific purpose of constructing the drain.

“The bridge is not shown to be or to have been regarded by the drainage commissioners or by the court as a necessary part of the drain. To compel appellee, as the drainage commissioner, to use the assessments made for the purpose of constructing the drain in the erection of the bridge over the drain would not only turn those assessments from the purpose for which they were made, but would also impose upon a few land-owners a burden which the law contemplates shall be borne by the taxpayers at large.”

This was said by this court a long time ago, but it has never been questioned and we have found no statute which alters the rule laid down.

It is therefore ordered that the temporary writ of prohibition issued herein be and it is hereby dissolved; that a permanent writ, except as to the portion of the decree ordering the State Highway Commission to build a bridge, be denied, and that respondents be and they are hereby prohibited from enforcing that part of the decree in the matter involved, which orders the State Highway Commission to build a bridge on Highway 41, over the ditch or drain, which has been established.

Emmert, C. J., and Gilkison, J., dissent.

Note.—Reported in 76 N. E. 2d 832.