
    ROAD IMPROVEMENTS.
    [Common Pleas Court of Mercer County.]
    Albert Yeoman et al v. The Board of County Commissioners of Mercer County et al.
    
      Action of Apportionment Committee and of County Commissioners— Adding of Lands — Failure to Add Lands.
    
    1. The ordering by a board of county commissioners of a road improvement under the two mile assessment act does not confirm the apportioning committee’s report.
    2. The fact that the board did not add lands to the assessment district beyond the terminus of the road is not evidence of fraud, since m the judgment or the board these lands may not have been benefited.
   Mathers, J.

It appears that the‘proceedings had by the county eommisioners prior to July 27, 1900, have been passed on by this court, and their validity established by its judgment and decree. They are, therefore, at least so far as this court is concerned, res judicata and will not be disturbed.

The decree referred to operated as a vacation of the order of the commissioners confirming the report of the apportioning committee, so the proceedings for examiation under the issues made by the supplemental petition and answers thereto stand as if no order of the commissioners confirming the apportionment of this committee had been made.

Section 4838 authorizes the county commissioners to order a road improvement to be made when the report of the committee is filed, which is appointed to view, examine, lay out, straighten, etc., to secure the public utility and convenience of the improvement petitioned for (which report includes an apportionment of the cost on the lands benefited), but the apportionment need not be confirmed by the commissioners before they can order the improvement. On the contrary, Sec. 4838 contemplates that, during the progress of the proceedings, other lands lying within two miles of the improvement may be found to be benefited and that it would be equitable and just to add them before making the final order of apportionment. By that section the commissioners are clothed with a discretion to determine if lands within two miles, and omitted by the committee, ought to be assessed, and with power to add them if they so determine. It is difficult to see how this Section 4838 could have any operation at all if the commissioners are to be held to have confirmed the apportioning committee’s report by ordering the improvement. In this case, a court of competent jurisdiction having determined that the committee’s apportionment was inequitable and unjust, and ordered it vacated, and the commissioners then vacating it 'and setting it aside, it must now be held that no valid order of the county commissioners, confirming the apportionment of the cost of the proposed improvement, was made prior to adding the other land's lying within two miles of the improvement, or at least, that no such order is now subsisting. Consequently, the doctrine announced in Glenn v. Waddell, 23 O. S., 605, that the confirmation of the committee’s report is final and exhausts the power of 'the commissioners with respect to the assessment, has no application here.

J. D. Johnston, for plaintiff.

P. E Kinney, Prosecuting Attorney, for defendants.

Had, then, the county commissioners the power to bring in the added lands for assessment according to benefits ? In the absence of fraud undoubtedly they had. Section 4838 authorized such action. It was distinctly decided in Parker v. Burgett et al, 29 O. S. 513, that the power to bring in added lands extended over two miles in 'all directions from the proposed road and was not merely-limited to the territory previously reported by the viewing or apportioning committee. It was also held in that case that the statute does not require that a majority of resident land owners, whose lands are finally assessed, should have subscribed the petition for the improvement in order to render the proceedings valid— that if the order for the improvement was valid when made, it will not be rendered invalid by the subsequent addition of lands which had been omitted. It does not appear, in the case at bar, but that the order for the improvement was valid when made.

In the light of the decision in Parker v. Burgett et al, supra, it would appear that the commissioners here have acted within their powers, and that the only other averments of the supplemental petition for consideration are those charging fraud. Fraud is never presumed but must be clearly proven. No fraud on the part of the commissioners, in exercising their clear legal authority to do what they did, has been shown, so the court cannot say that the action of the board was in bad faith or fraudulent. Th’e fact that they did not add lands lying south of the terminus of the road is no evidence of fraud, for these lands may not have been benefited, in the judgment of the commissioners, and they were the persons whose discretion was to be exercised in determining whether these lands were benefited or not.

Order: Petition .dismissed.  