Alley v. The City of Lebanon

• Decision Date: 20 October 1896
• Docket Number: 17,548
• Citation: 44 N.E. 1003,146 Ind. 125
• Parties: Alley v. The City of Lebanon et al
• Court: Indiana Supreme Court

44 N.E. 1003

146 Ind. 125

Alley v. The City of Lebanon et al

No. 17,548

Supreme Court of Indiana

October 20, 1896

From the Boone Circuit Court.

Affirmed.

Ralston & Keefe and Abbott & Ratcliff, for appellant.

Artman & Lewis, for appellees.

OPINION

Howard, J.

This was an action by the appellant to enjoin the collection of a sewer assessment. The appellee City of Lebanon, having assigned to the remaining appellees, contractors, all assessments for the construction of the sewer, filed in the court below her disclaimer to the appellant's complaint. The other appellees filed their answer, in which they set out in full the proceedings of the city council for the construction of the sewer and the making of the assessments.

The evidence was heard, and the facts found specially by the court. The findings so made show that all the proceedings for the construction of the sewer and the making of the assessments were, as is also admitted by counsel, in strict compliance with the provisions of the act approved March 8 1889 (Acts 1889, p. 237), and the amendments thereto (Acts 1891, p. 323), for the making of street and alley improvements and the building of sewers, known as the Barrett Law. (Sections 4288-4299, Burns' R. S. 1894.)

Many propositions are ably discussed in the elaborate briefs of counsel, as they were also in the oral argument, but we are of opinion that the only question that need be considered is whether the common council had jurisdiction to enter into the contract for the construction of the sewer.

In Robinson v. The City of Valparaiso, 136 Ind. 616, 36 N.E. 644, which was also a case under the Barrett law, certain property owners had sought to enjoin the collection of sewer assessments on account of the alleged defective construction of the sewer. It was there held, in accordance with the provisions of the statute, that an injunction might, in proper case, be had "upon the proceedings prior to the making of any such improvements." It was, however, also held that "from the time that work begins under a lawful contract, vested rights attach; and the faithful completion of the work is placed by the law in custody of the city authorities, chosen by the people and clothed with power to care for the common welfare;" but that if a property owner refuses to pay his assessment, and a precept is issued for its collection, an appeal may be had; on which appeal "all questions from the making of the contract to the report of the engineer on the final estimate are brought in review."

It might be said, therefore, that, in the case at bar, the appellant not having brought her injunction proceedings before the making of the contract for the sewer, and there being provided a right of appeal in case a precept is issued for the collection of the assessment made against her, the present action cannot lie. And this would be true unless it could be shown that the common council was absolutely without jurisdiction to enter into the contract for the building of the sewer. And this, indeed, is what counsel for appellant contend for.

The basis of this contention is that by the act to regulate sewer improvements in towns and cities, in force March 4, 1893 (Acts 1893, p. 332; sections 4273-4275, Bur...