ing causes, namely: (1) Because neither of the four paragraphs stated facts sufficient to constitute a cause of action; and (2) because the appellant had no legal capacity to bring and maintain the suit set forth in each of the four paragraphs of its original complaint. These demurrers were sustained by the court to each of such four paragraphs of complaint. Thereupon the appellant filed its additional fifth and sixth paragraphs of complaint, to each of which additional paragraphs appellee demurred, assigning substantially the same causes of demurrer as in his demurrer to the several paragraphs of the original complaint. The demurrers to the additional fifth and sixth paragraphs of complaint were also sustained by the court. With this statement of the rulings of the circuit court, as shown by the record of this cause, we proceed now to the consideration and decision of the question in the case discussed by appellant's counsel.

In the first paragraph of its complaint, appellant first showed, by proper averments, that appellee, Kimberlin, was the duly elected, qualified, and acting treasurer of Tipton county for two successive official terms, or during a period of four years, commencing on the seventeenth day of August, 1875, and continuing to and ending on the seventeenth day of August, 1879. And appellant averred that, at the times required by law, appellee made his settlements with the auditor of such county, and, when he retired from office, he attempted to make a final settlement of his official matters with such auditor and appellant; that afterwards it was discovered that there was a mistake in the last-mentioned settlement, and on the ninth day of March, 1880, the appellee and appellant settled and adjusted the amount due from appellee to Tipton county, which amount was found to be $8,000; that, at that date, appellee presented to the treasurer of Tipton county and the appellant certain county orders which had been redeemed and paid by him while in office, and demanded that Tipton county should redeem such orders, and take them in payment of the amount found due, upon such settlement, to such county; that appellant and such treasurer, believing that such orders had never been redeemed, and were a just and due demand or debt against such county, accepted such orders in payment of such balance found due such county as aforesaid. And appellant averred that the county orders, aforesaid, instead of being genuine claims and debts against such county, had been fully redeemed and paid by the county long before such last settlement, to-wit, on the day of November, 1875; that each and all of such county orders had been redeemed and paid by the appellee, Kimberlin; and that in each of his settlements with such county he had charged the county with such orders, and each of them, and a list and description of such orders, marked "Exhibit A," were filed with and made part of such paragraph of complaint; and that the amount of such orders, so paid by mistake, was $8,000. Wherefore, appellant said that appellee was indebted to appellant in the sum of $8,000, etc. We will consider the grounds of appellee's demurrer to the foregoing paragraph of complaint in the inverse order of their statement.

Under our statute providing for the organization of a board of commissioners in each county in this state for the transaction of county business, it will not do to say, we think, that such a board has not the legal capacity to sue, or to bring and maintain any suit or action, in its corporate name, for the enforcement of any cause of action it may have against any party or person in any court of competent jurisdiction. By the express terms of section 5735, Rev. St. 1881, in force since May 6, 1853, it is declared that such a board shall be "a body corporate and politic," by a specified corporate name, "and, as such, and in such name, may prosecute and defend suits," etc. Besides, it has always been held by this court that the second statutory cause for demurrer to a complaint, namely, "that the plaintiff has not legal capacity to sue," has reference only to some legal disability of the plaintiff, such as infancy, insanity, or idiocy, and not the fact, if it be the fact, that the com

plaint on its face fails to show any cause or right of action in the plaintiff. Dale v. Thomas, 67 Ind. 570; Dewey v. State, 91 Ind. 173; Traylor v. Dykins, Id. 229.

But we have often held, and correctly so we think, that a demurrer to a complaint for the fifth statutory cause of demurrer, namely, "that the complaint does not state facts sufficient to constitute a cause of action," (section 339, Rev. St. 1881,) calls in question, not only the sufficiency of the facts stated to constitute a cause of action, but also the right or authority of the particular plaintiff to bring and maintain a suit upon such cause of action. Pence v. Aughe, 101 Ind. 317; Wilson v. Galey, 103 Ind. 257; S. C. 2 N. E. Rep. 736; Walker v. Heller, 104 Ind. 327; S. Č. 3 N. E. Rep. 114; Frazer v. State, 106 Ind. 471; S. C. 7 N. E. Rep. 203. It is too clear for argument, as it seems to us, that the facts stated in the first paragraph of complaint herein, the substance of which we have heretofore given, are amply sufficient to constitute a cause of action against appellee, in favor of some person or party. Indeed, we think that if the same facts had been presented to the proper court, at the proper time, in proper form, and by competent authority, they would have been amply sufficient to constitute a charge of felony against the appellee.

It is not claimed on behalf of appellee that the facts stated are not sufficient to constitute a cause of action against him; but his learned counsel vigorously insist that appellant is not the proper plaintiff to bring or maintain a suit, in its own name, upon such cause of action. They base their argument of this question upon the provisions of section 6506, Rev. St. 1881. In that section it is made the duty of a county treasurer to "pay over all the revenues collected for county, road, and other purposes, and make settlements therefor, at the times and in the manner by this act required;" and it is then declared that, "upon failure or refusal to do so, he and his sureties on his official bond shall be held liable to pay the full amount which he should have paid over, together with interest and 10 per centum damages. Such suit, if for state revenue, shall be brought by the attorney general in the name of the state of Indiana, on the relation of the auditor of state, upon the written request of the auditor of state; and if for county, road, or for any other purpose, it shall be brought by the prosecuting attorney in the name of the state of Indiana, on relation of the county auditor, upon the written request of the county auditor, or upon the order of the board of county commissioners." We are of opinion that these statutory provisions have no application whatever, direct or analogous, to the case stated in appellant's complaint against the appellee. This is not a suit on the official bond of appellee as the former treasurer of Tipton county, and therefore the suit would have been improperly brought if brought in the name of the state of Indiana, or upon the relation of either the auditor of state or county auditor. The case stated in the complaint is one not contemplated in any of the legislation concerning our state or local revenues, and, to the credit of ordinary official integrity, it is one not likely to occur often. If the case stated in the complaint be true,and, as it is now presented here, its truth is admitted by appellee,-it is certain the appellee is indebted to Tipton county for moneys belonging to such county; and it is equally certain, we think, that appellant is the proper plaintiff to bring and wage a suit against appellee for the recovery of such moneys. In each of the paragraphs of its complaint, original and additional, appellant has sued appellee upon substantially the same cause of action, but has stated the facts constituting such cause of action in different order and phraseology in the different paragraphs. What we have said, therefore, in considering appellee's demurrer to the first paragraph, is equally applicable to the other paragraphs of appellant's complaint.

We are clearly of opinion that the court below erred in sustaining appellee's demurrer to each paragraph of appellant's complaint herein. The judg

ment is reversed, with costs, and the cause is remanded, with instructions to overrule the demurrers to each paragraph of complaint, and for further proceedings in accordance with this opinion.

(108 Ind. 443)

OSBORN and others v. SUTTON and others.
(Supreme Court of Indiana. December 14, 1886.)

1. WAYS-GRAVEL ROADS-COUNTY COMMISSIONERS-JURISDICTION.

Where jurisdiction over a proceeding to establish a gravel road is once acquired by the board of commissioners, it is not lost by the omission to enter an order continuing the proceeding.

2. SAME-FORMAL ORDER.

It is not necessary for the board of commissioners to enter a formal order declaring that it has jurisdiction, as the assumption of authority is a declaration that jurisdiction exists.

3. SAME-REPORT OF ASSESSMENT OF BENEFITS-DELAY.

A delay on the part of the committee to assess benefits in making a report is not a cause for dismissing the proceedings.

4. SAME-OBJECTIONS TO COMPETENCY OF COMMITTEE.

Objections to the competency of the committee to assess benefits must be made within a reasonable time after the committee is appointed.

5. SAME OBJECTIONS TO PETITION-WHEN TO BE MADE.

An objection that the petition is not signed by the requisite number of freeholders must be made before the report of the viewers is filed.

6. SAME-VACANCY IN COMMITTEE.

Where a vacancy occurs in the committee, it may be filled by the court.

7. SAME-OBJECTIONS-MUST BE SPECIFIC.

Objections to the petition and proceedings must be specifically stated.

8. STATUTES-REPEAL-EFFECT OF JUDGMENT RENDERED.

The repeal of a statute under which judicial proceedings have been prosecuted does not affect cases in which a final judgment was rendered prior to the repeal of the statute.

Appeal from circuit court, Howard county.

M. Garrigus, John E. Moore, and Bell & Purdum, for appellants. O'Brien & Shirley and Elliott & Kirkpatrick, for appellees.

ELLIOTT, C. J. On the eleventh day of March, 1882, the appellees petitioned the board of commissioners of Howard county to establish a free gravel road, and to direct an assessment of benefits and damages to be made. Viewers were thereupon appointed, and a report was made by them on the fourteenth day of June, 1882. On this report the proper order was made, and William Middleton, David Greeson, and William H. Conwell were appointed a committee to make the assessment. On the twelfth day of September, 1883, nine of the appellants appeared, and moved the board to dismiss the petition and proceedings, assigning as the causes for the motion-First, that the petition was not signed by a majority of the resident freeholders, and that it was not so recited in the order; second, that the order appointing the committee was made on the seventh day of June, 1882; that no entry of continuance was made, although three regular sessions of the board had been held in the interval between the time the motion was made and the order entered appointing the committee; and that changes were made in the ownership of lands during that period. The petitioners moved to strike from the files the motion of the appellants, and the motion of appellees was sustained.

There was no error in this ruling. The board of commissioners did not lose jurisdiction of the cause by reason of the failure to enter an order continuing the proceedings. Where jurisdiction is once acquired, it is not lost by the omission to enter orders continuing the cause. Stoddard v. Johnson, 75 Ind. 20, see page 34; Black v. Thomson, 107 Ind. 162; S. C. 7 N. E. Rep. 184. Had there been no notice of the time fixed for the meeting of the viewers, or

had the time fixed been disregarded, a very different question would have been presented. Hobbs v. Board, etc., 103 Ind. 575; S. C. 3 N. E. Rep. 263. Here there was notice to the viewers, and they did meet at the time designated, but the committee appointed to make the assessments delayed reporting. If the statute required the committee to report at a fixed time, there would be much force in the contention of appellants, but there is no such provision in it. The statute directs that the report shall be filed with the auditor, and that he shall give notice of the time and place that the commissioners will meet to consider the report; thus giving an ample opportunity to the land-owners to be heard. Rev. St. § 5096. The case is therefore essentially different from those in which the statute directs that the report of assessors shall be made at a designated time; so that the cases of Hobbs v. Board, etc., supra, and Claybaugh v. Baltimore, etc., Co., ante, 100, (this term,) are not in point.

It was not necessary for the board of commissioners to enter a formal order declaring that it had jurisdiction of the case, or that all jurisdictional facts had been shown. A general order or judgment is a sufficient declaration of jurisdiction, for the assumption of authority is an assertion of jurisdiction without any formal statement of the facts essential to give jurisdiction. Cauldwell v. Curry, 93 Ind. 363; Platter v. Board, etc., 103 Ind. 360; S. C. 2 N. E. Rep. 544; Carr v. State, 103 Ind. 548; S. C. 3 N. E. Rep. 375; Jackson v. State, 104 Ind. 576; S. C. 3 N. E. Rep. 863; Pickering v. State, 106 Ind. 228; S. C. 6 N. E. Rep. 611. Here there is a recital of many of the essential facts, and an order directing the establishment of the road and appointing a committee to assess benefits; so that it is quite clear that the order sufficiently asserts jurisdiction.

Where, as in such cases as the present, the land-owner is entitled to notice of the filing of the report of the committee appointed to assess benefits, he is not, at all events, entitled to a dismissal of the petition because of a delay of the committee in making the report., Palmer v. Updegraft, 107 Ind. 181; S. C. 6 N. E. Rep. 353. Whether the delay might or might not be made the basis of an exception to the report is not here the question; for the question here is, will such an objection sustain a motion to dismiss the petition? The section of the statute we have referred to gives the land-owner ample opportunity to except to the report, but it does not enable him to secure a dismissal of the petition by an objection based on the action or non-action of the committee.

The committee to assess benefits was appointed on the ninth day of June, 1882, and no objection was made to the competency of its members until January 25, 1884, when the appellants objected to the competency of two of them, on the ground that they had been viewers under the order of the board; but, in the same motion, they objected to the appointment of a new committee. We think that there was no error in overruling the appellant's objections. One reason for this is that they assumed inconsistent positions, one effectually destroying the other. The old maxim, "He is not to be heard who alleges things contradictory to each other," applies here with full force. Another reason is that the objection came too late. It should have been made at the time the committee was appointed, or, at least, within a reasonable time after the appellants had knowledge of the alleged incompetency of the committee. Smith v. Smith, 97 Ind. 273; Carr v. State, 103 Ind. 548; S. C. 3 N. E. Rep. 375; Palmer v. Updegraft, supra. The principle here involved is the same as that which prevails respecting the impaneling of juries, for the objection must be presented at the time the jury is selected, or at the time it becomes known, or it will be deemed waived. Shular v. State, 105 Ind. 289; S. C. 4 N. E. Rep. 870. It is therefore not necessary to decide whether the members of the committee objected to were or were not competent.

The objection that the petition was not subscribed by the requisite number of freeholders cannot be successfully made after the board of commissioners

has adjudicated that question. It was adjudicated in this case after notice to the appellants, and it was too late to present the objection that there was not a sufficient number of qualified petitioners after the report of the viewers had been approved, and the committee appointed. Palmer v. Updegraft, supra, and cases cited; Forsythe v. Kreuter, 100 Ind. 27; Washington Ice Co. v. Lay, 103 Ind. 48; S. C. 2 N. E. Rep. 222; Breitweiser v. Fuhrman, 88 Ind. 28, and cases cited; Little v. Thompson, 24 Ind. 146.

There was no error in appointing a member of the committee to take the place of one of the original members rendered incapable of serving on account of physical infirmities. The statute invests the board of commissioners with general jurisdiction of the subject of free gravel roads, and, while the authority is a statutory one, it is broad enough to enable the board to substitute a committeeman in case of a vacancy. McMullen v. State, 105 Ind. 334; S. C. 4 N. E. Rep. 903. It was not intended by the legislature that the whole proceedings should fail because of the illness or death of one of the committeemen, but the power to fill vacancies is necessarily implied in the broad grant of express powers contained in the statute..

Some of the objections to the petition and proceedings are stated in very general terms, and it is enough to say of them that they are not sufficiently specific to present any questions for our consideration. It is established by our decisions that objections must be specifically stated, or they will be disregarded. Palmer v. Updegraft, supra; Meranda v. Spurlin, 100 Ind. 380; Higbee v. Peed, 98 Ind. 420; Anderson v. Baker, Id. 587.

We agree with the counsel for the appellees that no question can be raised on appeal that was not presented to the board of commissioners. Thayer v. Burger, 100 Ind. 262; Clift v. Brown, 95 Ind. 53; Lowe v. Ryan, 94 Ind. 450; Green v. Elliott, 86 Ind. 53, and cases cited. This principle disposes of some of the questions argued, but not all of them. It does not dispose of the question sought to be made as to the authority of the board to issue bonds to pay for the proposed improvement, and that subject requires consideration, for the reason, if for no other, that it was brought to the attention of the board.

The third paragraph of the remonstrance avers, in substance, that the county has no power to issue bonds to pay for the proposed gravel road, for the reason that it is indebted beyond the limit allowed by the statute. Waiying the question whether bonds issued under the gravel road law can be deemed an indebtedness of the county within the meaning of the law, and waiving, also, the question as to whether an issue of that character can be formed in such a proceeding as this, we think the case must nevertheless be decided against the appellants. It does not appear that the board intends to pay for the improvement in bonds, or otherwise than with the proceeds of the tax as it may be collected; nor does it appear that the board may not fully discharge all of its indebtedness before it becomes necessary to incur any indebtedness for the construction of the gravel road. Where, as here, a plea is filed in the nature of a plea in abatement, it should be made to affirmatively appear that the officers are likely to violate their obligations by doing what it is claimed the law forbids.

The fifth paragraph of the remonstrance alleges that the proposed road is located, for the distance of two miles, on land previously appropriated for a public ditch, but it does not aver that the ditch will be interfered with by the construction of the road. We do not think that this cause of remonstrance is sufficient, for the statute confers upon the board authority to make all necessary and proper changes in the line of the proposed road. Rev. St. § 5095; Million v. Board, etc., 89 Ind. 15, see page 16. We cannot hold that such a change might not be made if required; but, on the contrary, must presume that the officers will do their duty. But, if it were otherwise, we cannot perceive that the land-owners will be injured if the ditch is taken, for only those