Bowen v. Hester

• Decision Date: 19 September 1895
• Citation: 143 Ind. 511,41 N.E. 330
• Parties: BOWEN, County Treasurer, v. HESTER.
• Court: Indiana Supreme Court

143 Ind. 511

41 N.E. 330

BOWEN, County Treasurer,

v.HESTER.¹

Supreme Court of Indiana.

Sept. 19, 1895.

Appeal from circuit court, Putnam county; S. M. McGregor, Judge.

Action by James M. Hester against Willard A. Bowen, as county treasurer, to restrain the collection by defendant of certain assessments against plaintiff's land to pay the expenses of constructing a highway. From an order overruling defendant's demurrer to the complaint, he appeals. Reversed.

Frank D. Ader and Henry H. Mathias, for appellant. G. C. Moore, D. E. Williams, and S. A. Hays, for appellee.

McCABE, J.

The appellee sued the appellant to enjoin the collection of certain assessments against his land to pay the expense of the construction of the Mt. Meridian and Putnamville free macadamized road, constructed by the board of commissioners of said Putnam county under the act approved March 3, 1877. Burns' Rev. St. 1894, §§ 6855-6867 (Rev. St. 1881, §§ 5091-5103). It is assigned for error here that the circuit court overruled appellant's demurrer to the complaint, sustained appellee's demurrer to the second paragraph of appellant's answer, and overruled his motion for a new trial. The complaint is so long, with many needless averments and repetitions, making 48 pages of the transcript, that we will only outline so much thereof as appellee has seen fit in his brief to summarize, discuss, and rely on.

The principal objection made in the complaint against the validity of the assessment against appellee's land is that he, in substance, alleges that the viewers and engineer-the only ones ever appointed by the board to examine, view, and straighten said road, and report to the commissioners the public necessity of the improvement, the damages claimed, the estimate of the expense thereof, and the lands that would be benefited thereby, and ought to be assessed for the expense of the same-did not, in their report, state that appellee's land would be benefited by such improvement; that, notwithstanding the failure of such viewers to report the appellee's land benefited by the proposed improvement, said board had caused his lands to be assessed $47 on the first assessment, and $18.50 on a second assessment, to meet a deficiency in the first assessment, to pay the expense of said improvement, and said sums had been placed on the duplicate as delinquent, and the same was in the hands of the defendant, as treasurer, who was threatening to proceed, by levy and sale of plaintiff's property, to collect said sums. It has been repeatedly held by this court that lands cannot be taxed for such an improvement in a sum exceeding the benefits which accrue to the land by reason of the improvement. Board of Com'rs v. Fullen, 111 Ind. 410, 12 N. E. 298;Campbell v. Board of Com'rs, 118 Ind. 119, 20 N. E. 772;Guckien v. Rothrock, 137 Ind. 355, 37 N. E. 17. The fourth section of the act (Burns' Rev. St. 1894, § 6858; Rev. St. 1881, § 5094) provides that the viewers and engineer shall report to the board at their next regular session, showing, among other things, the lands that will be benefited by, and ought to be assessed for, the expense of such improvement. The next section provides, among other things, that, upon the return of said report, if, in their opinion, public utility require it, they shall enter an order of record that the improvement be made, which order shall state, among other things, the lands which shall be assessed for the expense of the same. And the next section provides that the commissioners shall immediately appoint three freeholders a committee to apportion the estimated expense of said improvement upon the real property embraced in the order aforesaid, and report the same to the county auditor. It is therefore contended by the appellee that the commissioners had no jurisdiction to embrace any lands in their record entry, ordering the improvement to be made, other than those specified in the report of the viewers and engineer; and it is alleged in the complaint that no other such lands were embraced in said order, and that plaintiff's lands were not so embraced, and therefore they had no power, in appointing the committee to apportion expense, to authorize such committee, and it is alleged that they did not authorize such committee, to apportion any of such expense on any other lands than those embraced in the order aforesaid. And hence it is contended that the action of the apportioning committee in apportioning a part of the expense on appellee's land, as is alleged they did, was without authority of law, and void, and, therefore, the board had no power or jurisdiction to order appellee's land to stand assessed. Hence it is argued that its assessment is void. But it is shown in the complaint that the appellee's land lies within two miles of the contemplated improvement, and is therefore liable, under the act, to assessment for such improvement, if benefited thereby. It is further shown in the complaint that the report of the apportioning committee was filed with the auditor on September 4, 1884, and that he gave notice, by publication in a newspaper printed and published in Putnam county, of the filing of such report, and that on November 18, 1884, the board would meet at his office to hear the same, and that on said day they met at said office to hear said report, and entered the following order: “Comes now McC. Hartley, auditor, and presents the report of John W. McNary, William Broadstreet, and James H. Sparks, viewers in the cause filed within, and said report is as follows, after correction made by the board from the evidence submitted.” Then the complaint charges that no order was made confirming the report of the apportioning committee, either as made or corrected, but that the auditor, before entering the list of lands contained in said report, made the following entry: “And now comes said viewers and report the folalowing lands and lots benefited, which said land and lots are by the board added to the foregoing list, and, after correction, to stand assessed for the construction of the Mt. Meridian and Putnamville free macadamized road.” Then the complaint charges “that said pretended entry was inserted by the auditor in the copy of said report, and was no part of said report, and the commissioners made no correction of said report showing said lands were benefited.” This amended report contained appellee's lands as among those benefited by the contemplated improvement.

The allegation that the commissioners made no correction of the report of the viewers showing what lands were benefited is a direct contradiction of what the complaint itself shows that the commissioners' record states. Both entries, quoted into the complaint, taken together, show that, on evidence submitted and considered by the board, it corrected the report of the viewers and engineer, and added certain lands and lots benefited to the list of lands already contained in that report, making said report include, as the complaint shows, appellee's land. The averment that the report of the apportioning committee was never confirmed by the board is scarcely less a contradiction of what the complaint discloses that the commissioners record contains. The final order quoted into the complaint was that “said lands and lots are by the board added to the foregoing list, and, after correction, to stand assessed,” etc. This pretty clearly implies that the amended report of the apportioning committee is confirmed, because such lands and lots could not stand assessed without a confirmation of the report of the apportioning committee. In Stoddard v. Johnson, 75 Ind., at page 31, it was said: “And it is not necessary that the record of the board shall show an express finding upon such facts. Such finding will be presumed in support of the proceedings, if the record shows an order granting the petition, or for the taking of the steps necessary to the accomplishment of the end designed. In this case the order for the appointment of the viewers and engineer, and fixing the time and place of their meeting, is equivalent to a findingof the facts necessary to have been found, and to an adjudication of the board that the petition itself is sufficient.” And in Million v. Board of Com'rs, 89 Ind., at page 13, it was said: “Nor was it necessary, we think, that the finding of these jurisdictional facts by the county board should be shown by its record in express terms.” Under these decisions, the complaint states enough of the commissioners' record to show, at least, an implied, if not an express, confirmation of the report. Section 5 of the act (Burns' Rev. St. 1894, § 6859; Rev. St. 1881, § 5095), after providing, upon the return of the report of viewers, for the entry of an order upon the record that the improvement be made upon the conditions therein specified, further provides that: “If, at any time after making such final order, the commissioners shall find that there has been an omission of lots or lands within the territory sought to be assessed, or that there has been manifest injustice in the apportionment of taxes, or that public necessity requires any alteration in the manner of the improvement as ordered they are authorized to make such addition and reapportionment as they may deem just and proper.” The complaint before us shows that the commissioners' record states that they did the very thing that the above-quoted provision authorized them to do, namely, to make such addition and reapportionment as they deemed just and proper of omitted lands or lots within the territory sought to be assessed. That territory comprised all lands and lots within two miles of the contemplated improvement, as provided in section 4 of the act. Burns' Rev. St. 1894, § 6858 (Rev. St. 1881, § 5094). In Million v. Board of Com'rs, supra, this court, quoting from Ricketts v. Spraker, 77 Ind. 371, in speaking of this provision of section 5, said: “The statute confers ample authority...