People's Pilot, Volume 2, Number 45, Rensselaer, Jasper County, 28 April 1893 — Iroquois Ditch Cause. [ARTICLE]

Iroquois Ditch Cause.

I am afraid the record ordered by the board of commissioners week before last is defective. As the final entries have not been signed, the board can strike out all reference not “properly cognizable by them.” Sec. 5746 R. S. 1881. In the board’s corporate capacity, acting for the county, they should try to save bridges, but this does not add to their power as a court. Have they power to change the length, depth and direction of “the best route” for a ditch under the act of March 7, 1891? No consent of parties can add anything to the power of the board as a court. Horton v. Sawyer 59 Ind. 587. If the board had no power to decide, its entries are void. 25 Ind. 152. The statute and decisions of the supreme court adhere closely to the rule that the board can perform no duty not enjoined by any law of this state. Sec. 5745 R. S. 1881. Board v. Barnes 123 Ind. 403, 406. The statute of March 7, 1891, requires the board to “find from the report” in favor of or against the improvement. Sec. 3. “This means to take the improvement as a whole, following the description in the sworn report of the viewers.” I can find no authority to change that report even in a single word. Each one whose property is affected or taken has a clear right to damages to be assessed by the viewers, the board or a jury. Sections 3, 5 and 6.

The board can not grant part of a petition. City v. Bearss 55 Ind. 576. They can not change the first viewers report in a highway. McKee v. Gould 108 Ind. 107, 112. In other drainage proceedings the report of viewers as to courses and distances is conclusive. Meranda v. Spurlin, 100 Ind. 380 and Metty v. Marsh 124 Ind. 18, 21. “It is the duty of the viewers to locate the ditch at a place where it will accomplish the most good. ” Even a verdict when defective must be amended in the jury room. Pehlman v. State 115 Ind. 131, 133. It is easier to now make the record clear and straight by crossing out all matters not "properly cognizable” than to meet the question at any future time. The future life and salvation of this project requires that the petitioners all pull together for the “best route” and pay in cash for property taken and affected out of the proceeds of the bonds when sold. The too previous action of the board and land owners was taken without careful examination of counsel and no one need be blamed for not then making the point of want of jurisdiction. I hope this may be read and acted upon in a friendly spirit. The board can not add to its power by any act or statement of its own. The only source of their power is the statute. Consider these things and let the entries be freed of all matters not “properly cognizable” by the board. FRANK FOLTZ, Atty. for Petitioners. The most intelligent people of our community recognize in DeWitt’s Little Early Risers pills of unequaled merit for dyspepsia, headache and constipation. Very small, perfect in action. A. F. LONG & CO.