Adams v. City of Shelbyville

• Decision Date: 27 April 1900
• Docket Number: 18,998
• Citation: 57 N.E. 114,154 Ind. 467
• Parties: Adams v. City of Shelbyville
• Court: Indiana Supreme Court

57 N.E. 114

154 Ind. 467

Adams v. City of Shelbyville

No. 18,998

Supreme Court of Indiana

April 27, 1900

From the Shelby Circuit Court.

Reversed.

T. B Adams, Isaac Carter, B. F. Love and H. C. Morrison, for appellant.

D. L Wilson, W. A. Yarling, A. E. Lisher, J. Chez, B. K. Elliott W. F. Elliott, F. L. Littleton, Nelson & Myers and McConnell & Jenkines, for appellee.

Hadley C. J. Baker, J., dissents from so much of the opinion as affirms the constitutionality of the Barrett law.

OPINION

Hadley, C. J.

Appellant brought this suit to restrain appellee from improving a street on which he owned an abutting lot.

Shelbyville has less than 10,000 inhabitants, and the proceedings for the proposed improvement were instituted under the statute commonly known as "the Barrett law", §§ 4288-4298 Burns 1894, §§ 6771-6780 R. S. 1881 and Horner 1897. On August 2, 1898, the common council, without any petition from the owners of the property affected, passed a resolution declaring a necessity for the improvement, the same to be executed as follows: "There shall be set and erected a curb of oolitic stone four inches thick, twenty inches wide, and not less than five feet in length, to be set twenty-two feet from the lot line outward, set to grade, set on a good bed of sand four inches thick, and to be dressed so that when set and completed the part of curbing that is exposed will show as dressed; the joints all to fit neat and smooth and make close connection; and the space between the brick sidewalk on said part of said street shall be filled with good rich dirt, and properly graded and made smooth, and when grade is made to be covered with good live fresh sod, to be on grade with the curbing and the brick sidewalk, * * * and that the cost and expense thereof, including advertising, labor, and material for the same, be assessed against the property on the line, and collected according to the provisions of an act of the General Assembly of the State of Indiana approved March 8, 1889, and amendments thereto", and that notice should be given by publication that the common council, on August 30, 1898, at their chamber, would receive sealed proposals for the execution of the work, and would hear property owners' objections to the necessity for the construction thereof.

On August 26, 1898, appellant filed his complaint stating the foregoing facts, and alleging that the street to be improved is 100 feet wide, and the proposed widening of the sidewalks to twenty-two feet on each side will reduce the roadway to about fifty-five feet; that the making of said improvement will cost about $ 1 per lineal foot, which it is proposed the abutting property owners shall pay; that it will inconvenience the plaintiff and other property owners, and make their property less valuable because of the inconvenience in getting to and from the traveled roadway; that it will be of no benefit to the plaintiff, and damage him $ 100. The sustaining of a demurrer to the complaint for want of facts is the only error assigned.

Counsel, in the introduction of their respective briefs, epigrammatically state the principal issue in this court thus: "Is the 'Barrett law' law?" "The 'Barrett law' is law." "The 'Barrett law' is not law."

We will not stop now to inquire whether the demurrer to the complaint should have been overruled for a minor cause, since the appellant, as indicated by his argument, has based his appeal principally upon the question of the statute's constitutionality; and for the present the complaint will be taken as admitting that the city intends to proceed in accordance with the provisions of the statute. Appellant's contention is that the statute, in violation of the federal and State Constitutions, provides for the taking of property without just compensation, and without due process of law. Two propositions are involved: (1) Is the method of assessing the whole cost of a street improvement upon the abutting property equally by the frontage, irrespective of accruing benefits and damages, constitutional? (2) Is that the method required by the Barrett law?

Many of the courts of this country have answered the first question in the affirmative. Cooley on Taxation (2nd ed. 1886), p. 644, says: "In many instances where streets were to be opened or improved, sewers constructed, water pipes laid, or other improvements entered upon, the benefits of which might be expected to diffuse themselves along the line of the improvement in a degree bearing some proportion to the frontage, the legislature has deemed it right and proper to take the line of frontage as the most practicable and reasonable measure of probable benefits; and making that the standard, to apportion the benefits accordingly. Such a measure of apportionment seems at first blush to be perfectly arbitrary, and likely to operate in some cases with great injustice; but it can not be denied that in the case of some improvements, frontage is a very reasonable measure of benefits; much more just than value could be; and perhaps approaching equality as nearly as any estimate of benefits made by the judgment of men. However this may be, the authorities are well united in the conclusion that frontage may lawfully be made the basis of apportionment."

In his treatise on municipal corporations, published in 1890, Dillon gives an extended review of the subject, and notes that the courts are very generally agreed that the authority to require property specially benefited to bear the expense of local improvements is embraced within the taxing power, and that a statute authorizing municipal authorities to make such improvements and assess the cost in proportion to the frontage, in the absence of some special constitutional restriction, is a valid exercise of the power of taxation, and according to the weight of authority is considered to be a question of legislative expediency. §§ 752-761 (4th ed.). And, as upholding the doctrine of the majority, the author notes (§ 760) that the Supreme Court of the United States holds that state laws imposing upon property, according to legislative discretion, the cost of local improvements, do not deprive the owner of his property without due process of law within the meaning of the fourteenth amendment. Davidson v. City of New Orleans (1877), 96 U.S. 97, 104, 24 L.Ed. 616; County of Mobile v. Kimball (1880), 102 U.S. 691, 26 L.Ed. 238; Hagar v. Reclamation District (1883), 111 U.S. 701, 4 S.Ct. 663, 28 L.Ed. 569; Wurts v. Hoagland (1884), 114 U.S. 606, 5 S.Ct. 1086, 29 L.Ed. 229; Walston v. Nevin (1888), 128 U.S. 578, 9 S.Ct. 192, 32 L.Ed. 544. To which may be added: Spencer v. Merchant (1887), 125 U.S. 345, 8 S.Ct. 921, 31 L.Ed. 763; Williams v. Eggleston (1898), 170 U.S. 304, 311, 18 S.Ct. 617, 42 L.Ed. 1047; Parsons v. District of Columbia (1898), 170 U.S. 45, 18 S.Ct. 521, 42 L.Ed. 943.

The author, however, after considering many cases pro and con, and summing up the general principles underlying special assessment, in his eighth conclusion (§ 761), affirms what he conceives to be the only true rule upon principle as follows: "Whether it is competent for the legislature to declare that no part of the expense of a local improvement of a public nature shall be borne by a general tax, and that the whole of it shall be assessed upon the abutting property and other property in the vicinity of the improvement, thus for itself conclusively determining, not only that such property is specially benefited, but that it is thus benefited to the extent of the cost of the improvement, and then to provide for the apportionment of the amount by an estimate to be made by designated boards or officers, or by frontage or superficial area, is a question upon which the courts are not agreed. Almost all of the earlier cases asserted that the legislative discretion in the apportionment of public burdens extended this far, and such legislation is still upheld in most of the states. But since the period when express provisions have been made in many of the state constitutions, requiring uniformity and equality of taxation, several courts of great respectability, either by force of this requirement or in the spirit of it, and perceiving that special benefits actually received by each parcel of contributing property was the only principle upon which such assessments can justly rest, and that any other rule is unequal, oppressive, and arbitrary, have denied the unlimited scope of legislative discretion and power, and asserted what must upon principle be regarded as the just and reasonable doctrine, that the cost of a local improvement can be assessed upon particular property only to the extent that it is specially and peculiarly benefited; and since the excess beyond that is a benefit to the municipality at large, it must be borne by the general treasury."

Among the many cases cited by the author in support of his conclusion is Tide-water Co. v. Coster, 18 N.J. Eq. 518, where it is said on page 527: "Where lands are improved by legislative action, on the ground of public utility, the cost of such improvement, it has been frequently held, may, to a certain degree, be imposed on the parties who, in consequence of owning lands in the vicinity of such improvement, receive a peculiar advantage. By the operation of such a system, it is not considered that the property of the individual, or any part of it, is taken from him for the public use, because he is compensated in the enhanced value of such property. But it is clear this principle is only applicable when the benefit is commensurate to the burthen when that which is received by the landowner is equal or superior in value to the sum exacted; for if the sum exacted be in excess, then to that extent, most incontestably,...