Bd. of Com'rs of Montgomery Co. v. Fullen

• Decision Date: 18 October 1887
• Citation: 13 N.E. 574,111 Ind. 410
• Parties: Board of Com'rs of Montgomery Co. v. Fullen and others.
• Court: Indiana Supreme Court

111 Ind. 410

13 N.E. 574

Board of Com'rs of Montgomery Co.

v.Fullen and others.

Supreme Court of Indiana.

October 18, 1887.

Appeal from circuit court, Montgomery county.

On petition for rehearing. See 12 N. E. Rep. 298.

J. H. Burford, Paul & Humphries, Benj. Crane, and Thompson & West, for appellant. Wright & Seller and Kennedy & Kennedy, for appellees.

Elliott, J.

It is contended in the argument on the petition for a rehearing that a gravel road, when constructed, becomes a county road, and therefore it must be paid for by the county. But this argument will not bear investigation. All works in which the assistance of the right of eminent domain, or the power of taxation, is invoked, are in their nature public, since these great attributes of sovereignty can be invoked only where the work is a public one. There may be public works, and yet the public or governmental corporation not be required to pay the cost of making them. This is so in the case of streets, highways, and sewers; but, although these things all belong to the public when completed, yet the cost of constructing them may be obtained by local assessments on the property benefited. Heick v. Voight, 110 Ind. 279-284, 11 N. E. Rep. 306. The law upon this subject is now too firmly settled to be disturbed. It is evident, therefore, that the conclusion of counsel does not follow from their premises.

We did not decide, nor do we mean to decide, that payment can be exacted beyond the special benefits conferred upon the land; but we do hold that to the extent of those benefits assessments may be made, and that making one assessment does not exhaust the power of the board. We base our conclusion upon the obvious purpose of the statute to compel the lands specially benefited to bear the burden, and not to suffer it to be borne by the county. There can, as we think, and as we have several times decided, be no doubt that the legislature meant that the cost of constructing free gravel roads should be paid by the property specially benefited. If this is the intention of the legislature, then it ought not to be rendered nugatory by holding that no machinery is provided for levying and collecting a second assessment. Especially should this result be avoided where, as here, the express language of the statute fairly indicates what the machinery is. Nor is it in any sense judicial legislation to affirm that the legislature intended that the proceedings in levying a second assessment...