
    No. 6682.
    Doctor et al. v. Hartman et al.
    County Commissioners. — Jurisdiction.—The board of county commissioners is a court of special limited jurisdiction, possessing only such powers as the statute confers. Hot only is its jurisdiction restricted, but the mode of exercising its authority is a limited, statutory one.
    
      Same. — Sighway.—Viewers, Report of. — Public Utility. — Unless a highway is of public utility, it can not be opened across the lands of persons objecting thereto, even though the petitioners therefor are willing to open and maintain it at then own expense; and whether a highway is or is not of public utility is a matter of which the commissioners are informed by the report of viewers.
    
      Same. — Report of Viewers must be Acted on. — Judgment.—The report of viewers appointed by a board of commissioners, upon petition for the location of a highway, whether favorable or unfavorable to the petitioners, must be acted upon by the board, and, if adverse to the petitioners, the board must pronounce some judgment thereon. Such report stands in the same relation to such board as the verdict of a jury to the court, and it is the duty of the board to pronounce judgment upon, it, except in cases where the statute provides differently.
    
      Same. — Power to Set Aside Report of Viewers. — Reviewers.—There are but two cases in which authority is given the board of commissioners to set aside the report of viewers, and appoint reviewers, and these cases are especially provided for by sections 19 and 23 of the act in relation to highways, 1 R. S. 1876, p. 528, and there are no other eases in which, such authority can be implied.
    
      Same. — Approval of Report of Viewers. — Final Judgment, No Power to Set Aside. — Where the report of viewers is adverse to the petitioners for the location of a highway, and judgment has been entered by the board of' commissioners approving the report, such board has no right to set' aside such judgment and appoint reviewers.
    
      Same. — Right to Set Aside Final Judgment. — The right to set aside final" judgments is not an ordinary incident of the jurisdiction of courts of' limited statutory jurisdiction.
    
      Jurisdiction. — Waiver. — Supreme Court. — "Where the law denies to a court jurisdiction of the subject-matter of an action, parties can not confer it, even by express consent, and much less waive objection by not questioning its jurisdiction upon their first appearance to the action. Objections to the jurisdiction of the court over the subject-matter of the cause maybe made at any time in the progress of a case, or for the first time in the Supreme Court.
    
      Practice. — Bill of Exceptions. — Record—Where full information and all' essential facts are shown in the record, no bill of exceptions is necessary.
    
      From the Allen Circuit Court.
    
      A. Zollars and F. T. Zollars, for appellants.
    
      W. G. Colerick, H. Colerick and T. W. Colerick, for appellees.
   Elliott, J.

On the fourth day of the March term, 1874, of the board of commissioners of Allen county, the appellees petitioned, for the location and opening of a highway. Three viewers were appointed and directed to report at the June term. On the fifth day of the June term, the viewers reported against the opening of the road, and the commissioners entered an order approving the report, and declaring that the proposed highway should not be opened. On the thirteenth day of the same term, the board, upon, the motion of the attorneys of the petitioners and without notice to any one, set aside the former order, and appointed different viewers. The former order was set aside, as the record recited, because one of the viewers was a brother-in-law to one of the parties interested. The viewers appointed under the order of the board setting aside the former order were directed to examine and make report, and in compliance with this order they did, on the thirteenth day of the September term of the commissioners’ court, report in favor of opening the highway for which appellees had petitioned. The appellants, on the day this report was made, filed a remonstrance, and the board again appointed viewers, and ordered them to report at the December term. On the fourth day of the December session of the board, and prior to any report being filed by the reviewers, the appellants filed a motion to dismiss the petition and proceedings. The reviewers appointed by the order of September 13th made a report on the eleventh day of the December term, and on that day the appellants’ motion to dismiss was overruled and an order entei’ed directing the opening of the highway.

From the order of the board of commissioners directing the opening of the highway the appellants appealed to the circuit court, where there was a trial by jury, and a verdict and judgment in favor of the appellees.

The motion to dismiss the petition and proceedings made in the commissioners’ court was renewed in the circuit court, was again overruled and exception reserved.

Counsel for appellants contend that when the commissioners entered judgment upon the report made by the viewers against the proposed highway, the petition was finally disposed of and the powers of the commissioners exhausted.

The commissioners’ court, as is well known, is one of special limited jurisdiction, possessing only such powers as the statute confers. Not only is its jurisdiction restricted, but the mode of exercising the authority conferred is a limited statutory one. It is true, as counsel for appellees assert, that it is a court of record, but it is also true, as said in The Board, etc., v. Wright, 22 Ind. 187, that its “organization and duties are purely statutory.”

The statute does' not, either in express terms or by necessary implication, confer upon the board of commissioners power to appoint viewers, after those appointed have, made a report adverse-to the petitioners, and judgment has been •entered approving the report. Authoi’ity is granted to appoint reviewers in two cases, and those cases are especially provided for by sections 19 and 23 of the highway law. In the first of the sections named, provision is made for the appointment of reviewers in cases where the report is favorable to the highway, and any person over whose land the road will pass remonstrates. The second of the sections referred to makes provision for cases where freeholders of the county remonstrate against the opening of the proposed highway. There are, therefore, but two cases in which authority to set aside the report of viewers is conferred, and applying the familiar maxim, “Bxpressio unius est exclusio alterius,” we must hold that there are no others in which it can be implied.

The statute does not in express words declare what the commissioners shall do, in cases where the report of the viewers is adverse to the petitioners for the opening of the highway, but we think that, taking all the provisions of the statute together, the intention is that in such cases the commissioners shall act upon the report and deny the prayer of the petition. If this is not so, then the report of the reviewers is of effect only in cases where it is favorable to the petitioners. If we adopt this view, then we should be - driven to the conclusion that the report of the viewers is nugatory in all cases where they reach a conclusion against the petitioners. This would be an unreasonable construction of the statute, and one which would utterly destroy the whole statutory scheme for proceedings in highway cases. The report of the viewers against the highway must be deemed to be of some effect, or we should have the commissioners put in the situation of deciding against a proposed highway in very many cases, without any information or evidence as to the necessity or utility of the proposed highway. It is settled that, unless a highway is of public utility, it can not be opened across the lands of persons objecting, even though the petitioners are willing to open and maintain it at their own expense, and whether a highway is or is not of public utility, is a matter of which the commissioners are informed by the report of the viewers. Blackman v. Halves, 72 Ind. 515. Many considerations combine in requiring us to hold that the report of the viewers is in all cases to be given effect, and that when adverse to the petitioners the commissioners must take some action upon it; some judgment must be pronounced.

If the commissioners had entered final judgment against remonstrants after the report of the reviewers, we suppose that there could be no question as to the effect of such a. judgment. No authority is given to set aside, and the only remedy afforded the aggrieved party is by appeal. It is difficult to perceive why this is not the rule in cases where the-judgment is adverse to the petitioners.

The right to set aside final judgments is not an ordinaiy incident of the jurisdiction of courts of limited statutory jurisdiction. We can not annex the authority to set aside judgments to the powers expressly granted, upon the ground that such a power is necessarily implied in the grant of the ^principal power. The principal power to adopt or reject the reports of viewers and reviewers may be completely exercised without implying the power to set aside judgments formally entered of record. Nor can we, by implication, subjoin any such poAver to those expressly granted, for the-express grant itself negatives the existence of the implied poAver to set aside judgments regularly «pronounced and recorded. The judicial powers of .a justice of the peace are more extensive than those of commissioners, and his court is one of record, yet it is Avell settled that a justice can not vacate a judgment except in the manner expressly provided by statute. In Foist v. Coppin, 35 Ind. 471, it was decided that a justice of the peace has no power to change, vacate or in any manner interfere with a judgment by him rendered, except in the manner provided by statute. In Smith v. Chandler, 13 Ind. 513, it Avas held that a justice of the peace could only set aside a judgment in the manner expressly authorized by statute, and if he assumed to do it in any other, his acts would be absolutely void. It has been several times held in Wisconsin, that a justice of the peace-must obey with strictness the requirements of the statute, and that he can only exercise the powers expressly conferred. It was held, applying this general rule, that a justice has nO' poAver to postpone the trial of a cause. Roberts v. Warren, 3 Wis. 736; Brown v. Kellogg, 17 Wis. 475; Crandall v. Bacon, 20 Wis. 639. There are cases in our own reports illustrating the general rulo and applying it to justices’ courts, but we do not think it necessary to cite them. It must be conceded that the courts of justices of the peace are endowed with larger judicial powers than the courts of county commissioners ; and, as the former do not possess the implied or incidental power to set aside or vacate judgments, it certainly can not be accorded to the latter.

The general doctrine which applies to the proceedings of the board of commissioners is well stated and applied in White v. Conover, 5 Blackf. 462. It was there said : “We conceive the law to be, that when statutory powers are conferred upon a court of inferior jurisdiction, and a mode of executing those powers is prescribed, the course pointed out must be substantially pursued, or the acts and judgments of the court are corctm non judice and void.” This doctrine has been approved over and over again by this court. We cite of the many cases a few only, showing the a]iplication of this settled general principle-: Barnard v. Haworth, 9 Ind. 103; English v. Smock, 34 Ind. 115; Mossman v. Forrest, 27 Ind. 233; Collins v. Fraiser, 27 Ind. 477. In The Board, etc., v. The State, ex rel., 61 Ind. 75, it was held that the board of commissioners had no power to set aside a judgment upon the ground of fraud, the court saying: “The board of commissioners is a court of inferior and limited jurisdiction, and it can exercise such powers, and such only, as are conferred upon it.” It is true that in the case cited the application to vacate was made after the close of the term, but this can make no difference ; for, if the right to set aside or vacate judgments is possessed by the commissioners’ court as an incidental one, then it may as well be exercised after as during term time. In The City of Peru v. Bearss, 55 Ind. 576, the same general principle is enforced ; for it was there held that the order of the board of commissioners, made upon the petition of an incorporated city prayingfor the annexation of contiguous territory, must embrace all of the lands included in the petition, or it would be void. In Windman v. The City of Vincennes, 58 Ind. 480, the same holding is made. In other States there are many cases illustrating the general rule which prevails in ours. Thus, in The State v. Castle, 44 Wis. 670, it was held that passing over a petition for the opening of a highway for one session of the board, and adjourning beyond the time limited by law, discontinued the proceedings. In The Inhabitants of Monticello v. The County Commissioners, etc., 59 Me. 391, it a vas held that passing the petition over to a time different from that prescribed by law ousted the jurisdiction of the board. The case of The Inhabitants of Braintree v. The County Commissioners, etc., 8 Cush. 546, holds that where commissioners, in laying out á highAvay, include in their order a condition which they have no power to make, they thereby render void the entire order.

It was held in Shafer v. Bardener, 19 Ind. 294, that the court had no power to order a highAvay opened where the verdict found it to be not of public utility; and the same conclusion was reached at this term in the case of Blackman v. Halves, supra, but upon different grounds. The report of the viewers must be held to stand in the same relation to the board of commissioners as the verdict of the jury to the court, and it is the duty of the commissioners to pronounce judgment upon it, except in the cases where the statute provides differently. As the board possesses no power to grant new trials or vacate judgments, the commissioners must act upon the report of the vieAvers by entering judgment. If the case is one where reviewers may be appointed, then the commissioners must adjudge that they be appointed; if the case is one where there is no power to appoint reviewers, then the judgment must be a final one opening, or refusing to open, the highway. The remedy of the aggrieved party is not by motion to vacate the judgment, but by appeal as provided in section 26 of the statute.

The conclusion, that the board had no authority to vacate-the judgment entered refusing the prayer of the petition, seems to us to be clearly right, both upon principle and authority. In rendering the judgment, it exhausted the power with which the law had invested it, and it had no right to afterwards attempt to resume authority over the proceedings which the judgment had terminated.

The appellees contend that appellants waived objection by not questioning the jurisdiction upon their, first appearance. We think otherwise. If the judgment rendered upon the petition terminated the authority and jurisdiction of the court, it was not within the power of the parties to reinvest the court with jurisdiction. Where the law denies to a court jurisdiction of the subject-matter, parties can not confer it even by expi’ess consent.

There is another consideration which should not be lost sight of, and that is, the right of resident freeholders of the county to remonstrate and litigate the question of the utility of the proposed highway. Section 23. of the statute concerning highways provides that freeholders of the county living-along the line of the highway may remonstrate, and they are, therefore, entitled to litigate the question of the utility of the road, notwithstanding the fact that the proposed highway does not pass over their lands. Those who are aggrieved, because their lands are taken can not, by any act they may do, give jurisdiction ; for all others similarly situated, as well as all resident freeholders along the line, have an interest in the subject-matter of the litigation. The policy of the law is to secure ndtice to all who are interested, and not to leave it in the power of some of the interested parties to confer jurisdiction by either tacit waiver or express consent. When the proceeding is terminated by judgment, the matter can. only be again brought into court by commencing proceedings anew, or by appeal.

Other questions are discussed, but the conclusion at which we have arrived renders their consideration unnecessary.

Judgment reversed, at costs of appellees.

On Petition for a Rehearing.

Elliott, J.

In the petition for a rehearing filed by appellees, it is said that we overlooked their proposition that appeals from commissioners are to be tried de novo, and that it is, therefore, not material what errors are committed in the course of the proceedings before the commissioners. We did not overlook this proposition, but we did think, and do .still think, that it is without force in a case where the record shows, as it does here, that the proceedings had been fully closed by a final judgment, and that there was a subsequent attempt to resume jurisdiction without any right or authority whatever. Appellees illustrate their argument by supposing the case of a trial before a justice of the peace, and the wrongful refusal of a continuance. The supposed case is utterly unlike the real one. If appellees had supposed a case where the justice had rendered final judgment, and ten or twenty .days afterward had resumed jurisdiction and proceeded to re-try the case without the slightest authority for ,so doing, they would have presented a case much more closely resembling the present.

It is also urged that we did not notice the point that no exception was reserved upon the ruling on the motion to dismiss. We did certainly see in appellees’ brief, as well as in the record, the statement, “Come the parties and the court now overrules said motion to dismiss said petition and the subsequent proceedings thereon had before the board of commissioners of Allen county, to which ruling the plaintiffs except.” This we deemed a sufficient exception, for the motion itself was properly in the record certified from the commissioners’ court, as well as properly in the record of the circuit court; so, also, were the facts showing that the board had no jurisdiction to render the second judgment, which they did,, or to entertain the petition after they had fully adjudicated and closed the case by final judgment. We supposed that, when we had decided that the judgment of the commissioners was shown to be utterly void because of want of jurisdiction, it was not necessary for us to say that it did not require a bill of exceptions to. exhibit what was already in the record. We stated that the record affirmatively showed, that the board of commissioners had no jurisdiction, and took it for granted that in such a case it would not be supposed that a bill was necessary. If it had been necessary to examine any matters outside of those properly disclosed by the record, then, doubtless, a bill of exceptions would have been necessary, but here the facts were fully and affirmatively shown by the record, and a bill of exceptions-could not have supplied any additional material information. Where full information and all essential facts are shown in the record, no bill of exceptions is necessary ; or, as was said, in Young v. Martin, 8 Wal. 354, no bill of exceptions is necessary where the error alleged is apparent upon the face of the record. A question such as appellees’ motion presented might have been made at any time, even in the highest appellate court. Indeed, no formal motion was necessary ; a suggestion of want of jurisdiction would have been sufficient. Without even a suggestion, ex mero motu, a court will set-aside a. judgment rendered without jurisdiction. Hervey v. Edmunds, 68 N. C. 243; Cannan v. Reynolds, 5 Ellis & B. 301; Coleman’s Appeal, 75 Pa. St. 441; Crane v. Barry, 47 Ga. 476; The State, ex rel., v. The Whitewater, etc., Co., 8 Ind. 320. No express act of appellants could have estopped, them from asserting that the commissioners had no jurisdiction, and, even if there had been no motion to dismiss, there-would have been no waiver. Thatcher v. Powell, 6 Wheat. 119; Shriver’s Lessee v. Lynn, 2 How. 43; Folger v. Columbian Ins. Co., 99 Mass. 267; Watson v. Bodell, 14 M. & W. 57; In re College Street, 11 R. I. 472; Davis v. Davis, 36 Ind. 160.

Petition overruled.  