support of the second, fourth, and fifth rea-[stated, it is well settled that the want of sons for dismissal in their motion, and it is jurisdiction over the particular case then beapparent that the motion is without founda-fore the court, belonging to the general class tion so far as they are concerned. The peti- of cases over which the court has jurisdiction clearly avers the existence of all juris- tion, may be waived by failure to make timedictional facts, the description of the begin- ly and specific objection. Daniels v. Bruce, ning, course, and terminus of the proposed supra, and cases therein cited. road could not well be clearer and more cer particular proceeding for locating and establishing a certain highway is dependent upon the presentation to it of a petition bearing the signatures of the number of persons provided by the statute and qualified as prescribed thereby. The statute expressly gives to boards of tain, and the record discloses that the notic-county commissioners jurisdiction over the es required were given in accordance with general subject of proceedings to establish the statute. The position of appellant's coun-highways outside of cities and incorporatsel, while not clearly presented, seems to be: ed towns; but whether a board of comFirst, that the first and third causes stated missioners acquires jurisdiction of any in appellants' motion to dismiss in the circuit court challenged the jurisdiction of the board of commissioners over the general subject of the proceeding, which could be done at any time, and that, the board not having jurisdiction, the circuit court could acquire none; and, second, that, appellant having be- [3] It was held in Conaway v. Ascherman fore the board raised the question of the (1884) 94 Ind. 187, that a petition for a highexistence of the facts necessary to give the way should show by proper averments that board jurisdiction over this particular in- the petitioners were qualified as the statute stance of the general class over which the required. But this case has been expressly board was vested with jurisdiction, the bur- overruled, and such an averment is not now den was placed on the petitioners to estab- required. Etna Life Insurance Co. v. Jones lish such facts by proof before the board, (1909) 173 Ind. 149, 89 N. E. 871. See, also, and this proof, it is claimed, must appear Hall v. McDonald (1908) 171 Ind. 9, 85 N. E. in the transcript of the board's proceedings 707. When, however, a petition for a highcertified to the circuit court to give that way is presented to a board of county comcourt jurisdiction. The particular jurisdic-missioners, the board must inform itself and tional fact, of which counsel now claims that determine that the petition is signed by 12 the first and third causes on which appel- freeholders of the county, 6 of whom live in lants' motion was based challenged the ex- the immediate neighborhood of the highway istence, was the qualification of the petition- for the location of which the petition is ers; and it is contended that appellants' made, for this is a fact upon which jurisdicmotion put on the petitioners the duty of tion of the particular proceeding depends. proving that the petition was signed by 12 But it does not follow that the board must freeholders of the county, 6 of whom re-enter of record either the proof or a formal sided in the immediate neighborhood of the proposed highway, which proof it is claimed must appear in the record. finding that the petition is signed by the requisite number and that they are qualified. The rule as frequently announced by this court is that the assumption of jurisdiction by proceeding in the various steps provided by the statute to a final order establishing the road is a decision on the question, and a formal order declaring that the board had jurisdiction of the particular case or that all jurisdictional facts had been shown is not necessary. Updegraff v. Palmer (1886) 107 Ind. 181, 6 N. E. 353; Osborn v. Sutton (1886) 108 Ind. 443, 445, 9 N. E. 410, and cases there cited; City of Bloomington v. Phelps, 149 Ind. 596, 598, 49 N. E. 581. [1, 2] It is true that lack of jurisdiction over the general subject (that is, of the general class of cases to which the particular case belongs) cannot be waived, and objection may be made at any time. Daniels v. Bruce (1911) 176 Ind. 151, 95 N. E. 569, and cases there cited. But there can be no ground for challenging the very obvious fact that the statute above referred to, under which this proceeding was begun, vests in boards of county commissioners general and exclusive original jurisdiction over over the location of public highways outside of cities and incor- [4] There was no lack of jurisdiction apporated towns, and therefore appellants' first parent upon the face of the record. The contention that the board of commissioners petition was on its face sufficient in every did not possess general jurisdiction of the particular. Indeed, it went beyond the necessubject-matter is groundless. Chicago, etc., sary averments and alleged specifically the R. Co. v. Sutton (1892) 130 Ind. 405, 30 N. E. qualifications of the petitioners. Notice of 291; Rassier.v. Grimmer (1892) 130 Ind. 219, the presentation of the petition was given and 28 N. E. 866, 29 N. E. 918; Gold v. Pitts-proof made as the law provides. Under those burgh, etc., R. Co. (1899) 153 Ind. 232, 240, circumstances, in the absence of timely and 53 N. E. 285; Renard v. Grande (1902) 29 Ind. App. 579, 64 N. E. 644; Harris v. Curtis (1905) 34 Ind. App. 438, 72 N. E. 1102. As to the second contention based on the specific objection to the board's jurisdiction over the particular case, the existence of all the facts upon which the jurisdiction of the board over the particular case would be by that tribunal, and the question could not dismiss. Little v. Thompson, 24 Ind. 146. afterwards be raised on appeal in the circuit It is true that it has been held that one poscourt. It has been decided many times by sessing the right may appear at the time the this court that objections to facts upon which petition is presented to the board and conthe jurisdiction of the board of commission- test the jurisdictional fact involved in the ers depends, not apparent upon the face of qualifications of the petitioners by objecting the record, can only be taken by appearing and producing evidence on the question, but before the board and making such objection at the time the petition is presented and before the appointment of the viewers. If such objections are not so presented, they cannot be raised afterwards either before the board or in the circuit court on appeal. Etna Life Ins. Co. v. Jones (1909) 173 Ind. 149, 154, 89 N. E. 871, and cases therein cited. [5] Appellants' motion to the board to dismiss while timely was not specific. It did not purport to challenge the qualifications of the petitioners. In the absence of a direct assertion of the nonexistence of the jurisdictional fact in question, made before the appointment of viewers, the fact that the board proceeded regularly to a final order establishing the highway involved an inquiry and finding of the existence of the fact. Appellants' motion was so general as to add nothing to the existing obligation of the board to determine the question of its jurisdiction over the proceeding. It is an elementary rule that a motion should state specifically the objection or objections on which it is founded so that the court may readily see that the motion should be granted. 14 Encyc. of Pl. & Pr. p. 118. This rule is only more strict when applied to the motion to dismiss in this case, as it was made both to the board and to the circuit court. Purporting to be a plea to the jurisdiction, the obligation to state the facts which showed a lack of jurisdiction was greater, for such a plea, being in the nature of a plea in abatement, must state the facts and be certain in every particular. 12 Encyc. of Pl. & Pr. 182, 183. Both motions were so general as to present no question, and no error was committed in overruling them. Updegraff v. Palmer (1886) 107 Ind. 181, 183, 6 N. E. 353; Osborn v. Sutton (1886) 108 Ind. 443, 447, 9 N. E. 410; Harris v. Curtis (1905) 34 Ind. App. 438, 72 N. E. 1102. [6] But, if appellants' motions had been sufficiently specific, another reason is apparent why no error was committed in overruling them. The absence of no jurisdictional fact was apparent on the face of the petition, but the contrary was true. It is only where the nonexistence of the jurisdictional facts is apparent that the petition is subject to a summary motion to dismiss made to the board, or such a motion or a demurrer addressed to it in the circuit court on appeal. Robinson on County and Township Officers, § 339; 1 Works' Prac. 355; 12 Encyc. of Pl. & Pr. p. 184. It has been held that, where the objection to the qualifications of the petitioners was not manifest on the face of the petition, it should be presented by plea in it does not appear that appellant did so. Little v. Thompson, supra; Irwin v. Armuth (1891) 129 Ind. 340, 28 N. E. 702. [7] A belated claim of appellants' counsel made in argument is that, as 4 of the 14 signers of the petition used the initials of their respective Christian names instead of signing their full Christian names, this was no signature at all as to them, and that therefore the petition was signed by only 10 persons, an insufficient number. Thus it is claimed it appeared on the face of the petition that there was not jurisdiction. Signing with the initials of the Christian name and the full surname has been held to be a sufficient signing. Collins v. Marvil (1896) 145 Ind. 531, 44 N. E. 487 Elliott on Roads and Streets (3d Ed.) § 372, note 20. [8] It is claimed by counsel for appellant that, as the evidence shows that the proposed public highway is to be located along the line of an existing private way with gates to a crossing over appellants' right of way, which private way it also appears from the evidence is the only means possessed by a number of people of the immediate locality of reaching public highways and markets, it does not appear that the road, if established, will be of public utility. This fact does not show the inutility of the road as a public highway. Opp v. Timmons (1898) 149 Ind. 236, 48 N. E. 1028. We know of no reason why a private way may not be taken for the public use of a highway as readily as other private property, when facts are shown establishing the need which makes public utility. [9] On the trial of the cause in the circuit court appellant offered, in support of its remonstrance for damages, to prove by a witness produced by it that the value of the use of appellant's railroad and property would be diminished from $200 to $1,000 by the public use of that part of its right of way for the highway crossing. Upon objection by counsel for petitioners, the court excluded the proffered testimony. The record shows an exception to this ruling by "the Pennsylvania Railway Company," which was not a party to the proceeding, but none by appellant. An exception by the Pennsylvania Railway Company is not available to appellant. [10] But, if the question were properly presented, settled principles of law would compel a decision of it against appellant. In New York, etc., R. Co. v. Rhodes (1909) 171 Ind. 521, 525, 86 N. E. 840, 24 L. R. A. (N. S.) 1225, it was held that a railroad company, having accepted the privileges and franchises from the state and acquired its right of way Cent. Dig. §§ 339-345; Dec. Dig. § 107.*] maintain its public highway (section 5195, 1 of viewers, the right to object will be deemed to cl. 5, Burns 1908), is not entitled to any com- have been waived. pensation for the interruption and inconvenience, if any, nor for increased expense nor increased risk, if any, nor for the expense and inconvenience of the railroad company in complying with the requirements of such statute as to highway crossings. Even in the absence of such a statute as section 5195, supra, the rule is that a private corporation which acquires a right to construct a railroad takes it subject to the dominant right of the state to cross its railroad whenever the public necessity demands that new roads or streets shall be opened. In accepting a grant from the state, the private corporation impliedly agrees that the sovereign right to provide necessary highways for citizens of the state shall not be impaired. It is considered that there is no taking of property where a public highway crosses a railroad right of way and, where as in this instance, the two uses may coexist; and it makes no difference in the matter of compensation whether the railroad merely owns an easement or the fee. Elliott on Roads and Streets (3d Ed.) § 249, and cases there cited; Chi. & Erie R. Co. v. Luddingtọn (1910) 175 Ind. 35, 40, 91 N. E. 939, 93 N. E. 273, and cases there cited. The authorities just cited establish the lack of merit in the numerous constitutional questions which counsel for appellant raises in the brief in its behalf. Judgment affirmed. (180 Ind. 312) THOMPSON et al. v. FERGUSON et al. (No. 22,128.) When the bond was thereafter executed and ful discharge of his duties from the beginning filed by the engineer, conditioned upon the faithof his services, his title was perfected and no objection could be made to his acting. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 339-345; Dec. Dig. § 107.*] 6. HIGHWAYS (§ 107*)-IMPROVEMENT-QUALIFICATION OF VIEWERS-TIME FOR OBJECTION. Where no objection was made at the time of the appointment of a road viewer after a hearing upon a petition for the improvement of a highway of which proper notice was given, no objection could thereafter be made on the ground that he was interested to an extent that would disqualify him under Acts 1909, c. 101, § 5, unless the objectors show that they had no knowledge of his disqualification at the time of his appointment. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 339-345; Dec. Dig. § 107.*] 7. HIGHWAYS (§ 107*)-IMPROVEMENT-QUALIFICATION OF VIEWERS-SUFFICIENCY OF OB JECTION. Where the order appointing a viewer for the appointment of a highway stated that he did not own taxable property within the townships (Supreme Court of Indiana. Oct. 28, 1913.) affected, a remonstrance made after the report of 1. APPEAL AND Error (§ 83*)—DECISIONS AP- the viewers had been received by the commissionPEALABLE-FINALITY-NATURE OF PROCEED-ers, which stated that the viewer "is one of the owners and a stockholder" of a corporation ownfore "is the owner of taxable property," does not ing taxable property in the township and thereshow that he was such stockholder at the time of his appointment and is insufficient. INGS. A judgment of the circuit court remanding proceedings for the improvement of a highway under Acts 1909, c. 101, to the commissioners with instructions to set aside the orders entered therein is a final judgment from which an appeal will lie. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 523-527; Dec. Dig. § 83.*] 2. COUNTIES (§ 52*)-COMMISSIONERS-INTEREST OF ONE MEMBER. Under Burns' Ann. St. 1908, § 5969, making two members a quorum of the board of county commissioners, the fact that one commissioner is interested in proceedings for the improvement of a highway does not oust the board of jurisdiction over such proceedings. [Ed. Note. For other cases, see Counties, Cent. Dig. §§ 63-65; Dec. Dig. § 52.*] 8. HIGHWAYS (§ 107*)-IMPROVEMENT-PROCEEDINGS-QUALIFICATION OF COUNTY COмMISSIONER-TIME FOR OBJECTION. Where a county commissioner has such an interest in proceedings for the improvement of a highway as to disqualify him, his participation in such proceedings does not render the actions of the board void but merely voidable, and where his interest appeared upon the face of the petition, and no objection to his acting was made at the hearing of the petitioner for the appointment [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 339-345; Dec. Dig. § 107.*] 8. HIGHWAYS (§ 107*)—IMPROVEMENT OBJECTION TO VIEWERS-WAIVER. Such a remonstrance was equivalent to an entire failure to raise the question of the viewer's competency before the board of commissioners, so that it could not thereafter be raised on appeal. Cent. Dig. §§ 339-345; Dec. Dig. § 107.*] Where the board of commissioners had entered the final order for the improvement of a highway under Acts 1909, c. 101, questions as to the validity of their proceedings raised on appeal, should be tried de novo in the circuit court. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 339-345; Dec. Dig. §. 107.*] Appeal from Circuit Court, Benton County; James I. Sanderson, Judge. Petition by William G. Thompson and others for the improvement of a public high way. After the Board of County Commis- their remonstrance against the proposed imsioners had entered a final order for the provement, as provided by section 7 of the improvement, Bryce Ferguson and others act, on the ground that it would not be of pubappealed to the Circuit Court and moved to set aside all orders of the board. Motion granted, and the petitioners appeal. Reversed, with instructions to overrule the motion. lic utility and convenience, and this remonstrance was presented to the board on September 4, 1911, On this same day one of the remonstrators filed with the board a written motion to set aside the order of the the improvement and a freeholder, taxpayer, voter, and citizen of Union township and was therefore disqualified as a trier of the proceeding. Burton B. Berry and Fraser & Isham, all board, made at the August term, adjudging of Fowler, for appellants. Edmon G. Hall the petition sufficient and appointing an enand Elmore Barce, both of Fowler, for ap-gineer and viewers, and based that motion on the fact that Winfield S. Rowe, one of pellees. the commissioners who participated in makCOX, J. This proceeding for the improve-ing the order, was one of the petitioners for ment of a public highway on the line dividing Union and Gilboa townships in Benton county was begun under the provisions of the act of March 6, 1909 (Acts 1909, p. 263). The motion was overruled. Appellant's petition for the improvement was That action was followed on the same day filed in the office of the auditor of the coun- by the same remonstrator filing a written ty July 10, 1911, and, in accordance with motion to reject and set aside the report of the provisions of sections 2 and 4 of the act, the viewers. This motion was based on the that officer fixed the date for the presenta- same claim of interest and incapacity on the tion of the petition to the board of com- part of Rowe, the commissioner, and on the missioners and gave the required notice further grounds that the engineer did not thereof. This date was August 7, 1911, the qualify by filing his bond on August 10, 1911, first day of the August meeting of the board. at the time he took oath, and that William On the day fixed the petitioners made proof Cyr, as a stockholder and one of the owners of the publication and posting of notices and of the Lochiel Elevator Company, owning presented their petition to the board. No elevator property in Union township which taxpayer or person affected by the proposed would be taxed for the improvement, was work appeared and filed objections to the thereby not qualified to act as viewer. This form or sufficiency of the petition and the motion was also overruled. After other proboard found and adjudged that due notice ceedings contemplated by the act, the board had been given and that the petition was in ordered the improvement of the highway as all respects in legal form and sufficient. The petitioned for and reported favorably by the board then appointed Don Heaton, surveyor engineer and viewers. From this final order of Benton county, a competent civil engineer, of the board of commissioners, appellees aptogether with Charles Lawson and William pealed to the circuit court, and there two Cyr as viewers. In the order of the board of the remonstrators filed an unverified moappointing them, the latter were declared tion to remand the cause to the board of to be responsible freeholders and voters of commissioners with orders to set aside all the county, not residents of either of the orders of the board at its August term of townships named in the petition nor the 1911 and all subsequent orders made by it owners of taxable property in those town- in the cause. This motion was based on ships named in the petition nor the owners of the alleged disqualification of Rowe, the comtaxable property in those townships, which missioner, of Cyr, the viewer, and of Heaton, were qualifications the law required them the engineer, stated in the motion made beto possess. Acts 1909, p. 264, § 5. The en- fore the board to set aside the report of the gineer and viewers so named were by the viewers. The court sustained the motion order directed to meet at the auditor's office and rendered judgment accordingly. The on August 10th to qualify and thereafter to only question involved in this appeal is the proceed with their duties and to file their correctness of this ruling of the circuit court. report with the auditor on August 21, 1911. [1] The judgment of the circuit court reThey were sworn, and their report was filed manding the proceeding to the board of comon the respective dates fixed, and their re- missioners was a final judgment from which port was presented by them to the board of an appeal lies. Carr v. Duhme (1906) 167 commissioners on September 4, 1911, the first Ind. 88, 78 N. E. 322, 10 Ann. Cas. 967. day of the September meeting of the board. The bond of the engineer, required by section 6 of the act, while executed August 25, 1911, was not filed with the auditor until September 1, 1911. But by its terms as executed it was to secure the faithful discharge of the duties of Heaton as engineer for the proposed road during the term of his service beginning August 10, 1911. On Au [2] In so far as the action of the trial court in sustaining the motion in question depended upon the interest and alleged disqualification of Rowe, the county commissioner, it was erroneous. The improvement of the proposed highway was to be paid for by taxation, and the interest of the commissioner in question was only that of all of the other taxpayers of the two townships charge of his duties." Section 7 provides : "When such engineer and viewers shall have taken the oath, and such surveyor has exe cuted the bond herein prescribed, they shall proceed without delay, to view and make all needful surveys of the road," etc. But this court has recognized and approved the rule which prevails generally in this country that statutory provisions relating to the time when official bonds are required to be filed are directory and not mandatory, and that a failure of an officer to file a required bond within the time will not of itself work a forfeiture of the right to the office or create a vacancy. Board of Com. v. Johnson (1890) 127 Ind. 238, 26 N. E. 821; Albaugh v. State ex rel. (1896) 145 Ind. 356, 44 N. E. 355; Willey v. Windham (1901) 95 Me. 482, 50 Atl. 281; Throop on Public Officers, § 173; 8 Am. & Eng. Ency. of Law (2d Ed.) p. 787; Mechem on Public Officers, §§ 265, 266. This rule must obviously apply when, as here, the officer has been duly appointed, taken the oath of office, and entered upon the discharge of the duties of the office. In such case he is a de facto officer, and his official acts are valid in so far as they, as in this case, concern the public or third persons. interest would disqualify him or not, for we need not do so. Moreover, it does not appear that the participation of Rowe affected the interests of appellees injuriously at all. The statute (section 5969, Burns 1908) makes two members of the board a quorum, and it has been held that the fact that one of the three was interested does not oust the jurisdiction of that tribunal. Cauldwell v. Curry (1883) 93 Ind. 363, 365. But, if it should be conceded that his interest was such as to require the application of the old maxim of the law that no man can be the judge of his own cause, it would not render the proceedings of the board in which he participated void, but the utmost effect his participation in the proceeding in any view of the matter would be to render the action of the board merely voidable. In such case the disqualification may be waived. It is the general rule that, unless objection is made at the earliest opportunity to the right of the person claimed to be disqualified to act, it will be deemed to be waived. Carr v. Duhme, supra, and cases there cited; Seybold v. Rehwald (1912) 177 Ind. 301, 95 N. E. 235; 37 Cyc. 83, notes 67, 68; 15 Am. & Eng. Ency. of Law (2d Ed.) p. 375 (7); Elliott on Roads and Streets (3d Ed.) § 322. [5] Moreover it will be seen that the stat[3] Whatever disqualification attached to ute does not provide specifically when the commissioner Rowe was made apparent by bond shall be filed but does provide that the the presence of his name on the petition as viewers and engineer shall proceed with the one of the freeholders asking for the im-work without delay after the bond of the latprovement of the highway. Due notice of ter has been executed. The record shows the filing of the petition and that it would be heard on August 7, 1911, was given to all of the taxpayers of the two townships concerned. The appellees had opportunity to appear and make objection to Rowe as one of the triers of the proceeding at that time but did not do so. Under the general rule stated, whatever disqualification, if any, attached to him must be taken as waived. [4] The objection to the competency of the engineer to act in the matter and join in the report of the viewers presents no firmer foundation for the action of the trial court in re manding the proceeding than the interest of the commissioner. Appellees' counsel earnest ly urge the claim that the giving of the bond required of the engineer by section 6 of the act was a condition precedent to his right to act under the appointment of the board, and that, as he did not give the bond before beginning the duties of the office, he was neither an officer de facto nor de jure and all of his acts were void. The law does not sustain counsel in this claim. It is true that section 6 of the act provides that: "Such engineer and viewers shall meet at a time and place to be designated by such board of commissioners, within ten days after their appointment, and shall each take and subscribe an oath faithfully and impartially to discharge his duties, and such engineer shall execute, and file with such auditor, his bond, that the bond was executed on August 25, 1911, and filed with the auditor September 1, 1911. In explicit terms it was conditioned for the faithful discharge of the duties of Heaton as the engineer of the proposed road during the term of his service as such, beginning August 10, 1911. The filing of this bond, therefore, perfected whatever defect had existed in the engineer's title and made him an officer de jure as well as de facto at the time objection was first raised against him by the motion to reject and set aside the report of the viewers. Mechem on Public Officers, § 2660. [6] Whether the alleged disqualification of viewer Cyr, as. set out in the motion to remand the cause to the board, presents a substantial ground for the ruling of the trial court would, if so before us as to compel a decision of it, present a question not so clear. But we do not reach that question and do not decide it. It is urged upon us by counsel for appellants that, if it were true that Cyr was disqualified to act as viewer by reason of owning stock in a private corporation which owned taxable property in one of the townships affected by the road, appellees did not invoke timely and proper objection to the board of commissioners and therefore waived the incompetency. From what has been said in considering the objections to commissioner Rowe, it appears that appellees |