Board of Com'rs of Wells County v. Falk

• Decision Date: 23 March 1943
• Docket Number: 27772.
• Citation: 47 N.E.2d 320,221 Ind. 376
• Parties: BOARD OF COM'RS OF WELLS COUNTY et al. v. FALK.
• Court: Indiana Supreme Court

47 N.E.2d 320

221 Ind. 376

BOARD OF COM'RS OF WELLS COUNTY et al. v. FALK.

No. 27772.

Supreme Court of Indiana

March 23, 1943

Sturgis Stine & Sturgis, of Bluffton, for appellants.

Eichhorn Gordon & Edris, of Bluffton, for appellee.

O'MALLEY Judge.

The appellee Jonathan Falk commenced this action in the Wells Circuit Court to quiet title to, and to enjoin appellants from enforcing drainage assessments upon one hundred sixty (160) acres of land located in Wells County, Indiana.

The appellee in his complaint alleged the ownership of said real estate above indicated and that in the year 1918 there was filed in the Commissioners Court of Wells County a petition for the tiling of a public drain in Wells County, Indiana pursuant to § 1, Chapter 65 of the Acts of 1913. That proceedings were had thereon and a finding and judgment were finally rendered in said proceeding declaring the drain established. That said drain was called the Delong drain and consisted of an open ditch with laterals, a tiled portion of the main Delong drain, and a tiled prong known as the Markley prong, which was a continuation of the main tiled drain.

That said drain was constructed and the costs assessed against the land benefited, including the appellee's one hundred sixty (160) acres, and that said drain was maintained and repaired according to the law applicable thereto and is now under the supervision of the County Surveyor of Wells County Indiana, for repair and maintenance.

That in the year 1937 the Surveyor of Wells County was notified that the tile drain was out of repair and he inspected the same and determined that it needed repair and that the cost thereof would exceed Fifty Dollars ($50). Thereupon he gave notice of the letting of a contract for the repair of said drain, and let the repair contract. The drain having been repaired, the surveyor caused the costs thereof in the sum of Twenty-Six Hundred Forty-Seven Dollars and Fifty Cents ($2,647.50) to be paid out of the General Fund of Wells County and then proceeded to assess the same against the land originally assessed for the construction of said drain in the same proportion as used in the original assessment, and in accordance with § 27-210, Burns' 1933 (Supp.), § 5784, Baldwin's Supp. 1935.

The surveyor having ascertained that the cost was 16.374% of the original cost of the drain, and having ascertained that the appellee's land was assessed Nineteen Hundred Twenty Dollars ($1,920) for the construction of the Delong tile drain and Markley prong, assessed the appellee's land the sum of Three Hundred Fourteen Dollars and Thirty-Eight Cents ($314.38).

That no notice was given or hearing had in the proceedings for the repair of the tiled portion of the Delong drain and the Markley prong, and that said proceedings were had by virtue of and according to § 6, ch. 225, Acts 1935, § 27-210, Burns' 1933 (Supp.), § 5784, Baldwin's Supp. 1935.

To this complaint the appellants addressed demurrers, which were overruled by the court, and the appellants then filed answers in denial and the cause was tried by the court and special findings of fact made. Conclusions of law were entered on the special findings of fact and the appellants excepted and assigned error as to the first, third, fourth and fifth conclusions of law, which conclusions are as follows:

'1. The law is with the plaintiff and he is entitled to recover in this action.'

'3. Section 6, Chapter 225 of the Acts of the Indiana General Assembly of 1935, is unconstitutional and void as violative of the due process clause of the 14th Amendment of the Federal Constitution.

'4. The pretended lien, created by assessment for the repair of the Joseph Delong et al., drain and Markley prong thereto, is void, of no force and effect, and should be cancelled.

'5. The plaintiff is entitled to have his title to the several tracts of real estate above described quieted as against the pretended lien of said assessment against the several tracts of real estate above described owned by the said plaintiff.'

Judgment was in accordance with the conclusions of law.

Error is assigned on the overruling of the demurrers, the exceptions to the conclusions of law, the overruling of the motion for a new trial and the admission of evidence by the appellee showing what, if any, benefits accrued to the land assessed, by reason of the repair. No evidence was produced and no finding was made as to whether or not the drain needed repair, or whether or not it was economically accomplished.

Inasmuch as there are special findings of fact and conclusions of law, and since the question raised by the demurrers is likewise raised by the exceptions to the conclusions of law, we feel that it is unnecessary to pass upon the ruling on the demurrers. Board, etc., v. Town of Carlisle, 1924, 82 Ind.App. 63, 144 N.E. 859.

It is apparent that the only question involved is whether or not § 6 of ch. 225, p. 1053 of the Acts of 1935, being § 27-210, Burns' 1933 (Supp.), § 5784, Baldwin's 1935, is unconstitutional as being violative of and repugnant to the 'due process of law' clause of the Fourteenth Amendment to the Federal Constitution.

If this statute is unconstitutional the judgment should be affirmed, but if constitutional, the judgment should be reversed.

It is admitted by the appellee in his complaint, and in the finding of the court, that in the original proceeding to establish the Delong et al. drain all proceedings were had in accordance with the statute under which the drain was constructed, and this included notice and the right to be heard on all questions pertaining to said matter.

In the case of Yeomans v. Riddle, 1891, 84 Iowa 147, 157, 158, 50 N.W. 886, 889, 890, that court said: 'The reopening and repairs are really contemplated when the ditch is originally ordered. Unless the ditch be reopened when filled by the action of the frost and water, or other cause, and repaired when injury has been sustained by floods or other causes, the original outlay would be wholly lost. The law contemplates, what is familiar in the experience of all, that improvements of this kind require constant watchfulness and care to preserve them and their usefulness. * * * The law intended that the ditch should be permanent and enduring, and that its preservation should not depend upon the acquisition of jurisdiction by the supervisors through a petition which might never be presented, and which they would have no power to cause to be presented. It did not intend that a part of the land-owners, after having been heavily assessed for benefits, should lose their outlay by reason of the ditch becoming filled up, and their reclaimed land again become a pond, for the reason that the other land-owners had changed their views as to the utility of the ditch, and therefore refused to sign a petition for making repairs.'

In the above case it is held that the special assessment therein levied was made as a part of the taxing power of the State of Iowa and that no notice of any kind or character was necessary.

In the case of Baldwin v. Moroney, 1910, 173 Ind. 574, 577, 91 N.E. 3, 5, this court said: 'Appellant also insists that 'laws enacted by the Legislature for such public improvements as the construction of public highways or drains are not an exercise of the power of taxation.' As to the last contention, it has been held by many courts of last resort that the Legislature, in enacting such laws, exercises the sovereign power of taxation.'

In the case of Board of Com'rs, etc., v. Harrell et al., 1897, 147 Ind. 500, 504, 505, 507, 46 N.E. 124 125, 126, this court said: 'The power of the legislature in matters of taxation is unlimited, except as restricted by the constitution. The legislature, in the exercise of this power in making local improvements may create a special taxing district without regard to the boundaries of counties, townships, or...