Draper, Trustee, &c. v. Cambridge. by said Draper; that the plaintiff, on the - day of October, 1861, being under the age of 21 years, and being neither a negro nor mulatto, nor the son of a mulatto, demanded admittance into said school as a scholar; that said defendants refused to admit said John Cambridge to the privileges of said school, and refused to recognize him as a scholar in said school, to his damage 500 dollars. Wherefore the plaintiff prays that a writ of mandate issue, by order of this Court, to compel said defendants to admit said John W. Cambridge as a scholar in said school, or show cause why he should not be admitted, and for such other and further relief as is just and right." No further notice seems to have been taken of Hughes, and judgment was rendered against Draper only. We think Draper's demurrer to the complaint should have been sustained. Only unmarried persons, between the ages of 5 and 21 years, are to be enumerated and have the benefit of the common schools. Acts 1861, p. 71, sec. 12. The complaint should have averred that the plaintiff was over 5 years of age, and unmarried; or at least it should have averred that he was entitled to admission, as a scholar, into the school; neither of which is done. It was as necessary to be shown that the plaintiff was over 5 years of age, as it was that he was under 21; and that he was unmarried, as that he was neither a negro, mulatto, nor the son of a mulatto. It does not appear from the allegations that the plaintiff was entitled to admission as a scholar into the school, and hence no ground is shown for the issuing of the mandate. The case of The Board of Commissioners of LaGrange Co., v. Cutler, 7 Ind. 6, is conclusively in point, that facts must be stated to show that the party is entitled to the mandate. Per Curiam.-The judgment below is reversed, with cost. N. B. & C. Taylor, for the appellant. J. A. Beal, for the appellee. Brown v. McCord et al. BROWN v. MCCORD, et al. HIGHWAYS-PRACTICE.-A petition for the location of a highway need not affirmatively show that the petitioners are freeholders, or that six of them reside in the immediate neighborhood of the contemplated highway, and such facts may be proved on the hearing of the petition, although not alleged therein. But when such an application is taken by appeal to the Circuit Court, it will stand for trial there on its merits, as if originally instituted in that Court, and proof there as to what had been proved before the Commissioners, will not be competent, and the transcript of the proceedings before the Commissioners need not contain the proofs adduced before them. APPEAL from the Warren Circuit Court. DAVISON, J.-Samuel McCord and others, to the number of 30, at the September term, 1861, filed their petition before the Board of Commissioners of Warren county, for the location of a public highway in Liberty township, in that county. The petition describes the proposed highway, names the owners of the land through which it will run, and prays the appointment of viewers, &c., but fails to allege that 12 of the petitioners are freeholders, or that six of them reside in the immediate neighborhood of the highway proposed to be located. The Board, in accordance with the prayer, appointed three viewers, who at the November term, 1861, reported that they had viewed, laid out, and marked the proposed highway, and that the same when opened, would be of great public utility. At the last named term, Isaac Brown remonstrated against the opening of said highway, alleging in his remonstrance, that the highway laid out, &c., if opened, will do him great injury, as the same runs through his improved land, &c., and when opened, it will not be of public utility. And thereupon the Board ordered the remonstrance to be filed, ap Brown v. McCord et al. pointed three reviewers who, at the January term, 1862, reported inter alia, that the contemplated highway, if established, will be of public utility, and that Brown, by reason of its passage through his land, will sustain damage to the amount of 100 dollars. Upon the filing of this report, the Board ordered that a county order be issued to Isaac Brown for the damages assessed, &c., and that the proposed highway be opened, &c. From this decision Brown appealed. In the Circuit Court, to which the appeal was taken, he moved to dismiss the cause on the grounds that the petition did not allege that the petitioners, or at least twelve of them, were freeholders, that six of them, being freeholders, did reside in the immediate neighborhood of the highway, which it was proposed to locate; nor does the transcript of the proceedings show that in proof of these facts, there was any evidence offered before the Commissioners. Pending this motion, the Court, upon the motion of the plaintiffs, allowed them to prove by parol evidence, that before the Commissioners it was proved that the petitioners were freeholders, and that 6 of them were residents of the immediate neighborhood of the contemplated highway. And then the Court overruled the motion to dismiss, and the defendant excepted. Upon final hearing, the Court adjudged that the highway be opened, &c., and kept in repair; that this order be certified, &c., and that the damages and cost therein be paid out of the county treasury, &c. Was the motion to dismiss correctly overruled? This is the only question in the case. The statute says, "whenever twelve freeholders of the county, six of whom shall reside in the immediate neighborhood of the highway proposed to be located, &c., shall petition the Board of Commissioners for the location, &c., of any highway, such Board, if they shall be satisfied that no Elston et al. v. The Board of Trustees of Crawfordsville. tice of such application has been given, &c., shall appoint three persons to view such highway." 1 R. S., p. 310, sec. 15; Acts 1859, p. 113, sec. 1. The statute, as we have seen, does not definitely point out what the petition must contain. It should, however, be subscribed by at least twelve persons, should describe the proposed highway, and should name the owners, &c., of the lands through which it may pass; id. p. 307, sec. 1. But an allegation that the petitioners were freeholders, or that 6 of them resided in the immediate neighborhood of the contemplated highway, is not, in our opinion, essential to the validity of the petition; these facts may be proved on the hearing of the petition, though they are not alleged in the pleading. When, however, the cause was in the Circuit Court on appeal, it was there as a case originally instituted in that Court, to be tried on its merits, and hence an inquiry as to what was proved before the Commissioners was not legitimate, nor was it at all essential that the transcript of their proceedings should contain any of the proofs adduced before them. The motion to dismiss was not well taken. Per Curiam.-The judgment is affirmed, with costs. 20 272 137 297 20 272 142 457 20 272 150 567 150 569 150 571 20 272 f153 527 ELSTON et al. v. THE BOARD OF TRUSTEES OF CRAWFORDSVILLE. STATUTES CONSTRUED-TOWNS.-Section 51, 1 G. & H., p. 630, is not void for uncertainty, or inconsistency with other provisions of the law, but confers power on the Board of Commissioners, on petition of the trustees of any town, to order the annexation to the Elston et al. v. The Board of Trustees of Crawfordsville. town, of any adjacent territory not embraced in the provisions of section 50 of the same act. TOWNS-ANNEXATION.-The reasons for the proposed annexation of territory to a town should be stated in the application therefor, and the map or plat accompanying the same should be verified, but the application need not be. As to what reasons are sufficient, the reader is referred to the opinion herein at length. PARTIES.-If the application in such case correctly describes the territory to be annexed, and designates the owners of a part of it as the heirs of A B, and the alleged property of such heirs is properly described in the notice of such application, the fact that such heirs are not individually named will not vitiate the proceedings. APPEAL from the Montgomery Circuit Court. DAVISON, J.-This was a proceeding by petition, instituted by the Board of Trustees of the town of Crawfordsville, before the Board of Commissioners of Montgomery county, for the annexation to said town, of certain territory contiguous thereto, and not platted or laid off or recorded. The petition describes the territory sought to be annexed, is accompanied by a plat which also describes it, and which is verified by affidavit, and designates the person or persons to whom each piece of ground included within the boundaries of said. territory belongs. And further, the petition sets forth the reasons why such annexation is desired, which are in substance, as follows: 1. The limits of the town as they now exist, are such as to give great inconvenience to the citizens and officers of the town, and also make the burthen of taxation very unequal. 2. The present boundaries, including the platted lots, divide the town into separate divisions, leaving property between the divisions thus formed, and in thickly populated parts of the town entirely without said boundaries, causing some of the streets to lie partly within and partly without said town. VOL. XX.-18 |