Bradley v. City of Frankfort

Decision Date06 January 1885
Docket Number11,793
PartiesBradley v. City of Frankfort
CourtIndiana Supreme Court

From the Clinton Circuit Court.

The judgment is affirmed, with costs.

J. V Kent, for appellant.

A. E Paige and S. O. Bayless, for appellee.

OPINION

Zollars C. J.

From the proceedings of the common council of the city of Frankfort and the "city commissioners," under section 3166, et seq., R. S. 1881, in the extension and opening of a street, and the assessment of damages and benefits, appellant, to whose real estate benefits were assessed, appealed to Clinton Circuit Court.

In that court he filed his objections to the proceedings of the common council and commissioners, as he had a right to do under section 3180, R. S. 1881. A demurrer was sustained to the fifth and sixth grounds of his objections. Appellant has assigned that ruling as error, and seeks by argument to make good that assignment.

The substance of the fifth ground of objection is that one of the "city commissioners," who assisted in assessing benefits to appellant's property, was disqualified and incompetent to act, for the reason that he was financially interested in the opening of the street, as he owned property upon the street which will be benefited by the opening, if by such opening benefits will accrue to any property, and that on account of such interest he was unduly biased, prejudiced and influenced to assess benefits to appellant's property.

The substance of the sixth ground of objection is that another of the city commissioners was disqualified and incompetent to act, because he is the father-in-law of one Bryant, who owned property upon the street, which would be benefited, if by such opening benefits would accrue to any property. The statute provides that once in each year the circuit court in the county wherein cities are situated, shall appoint five freeholders, residents of the city, to act as "city commissioners" in the opening of streets, etc. Section 3166, R. S. 1881.

It is provided in section 3167, that in case any commissioner shall be interested, he shall be incompetent; and in case a number are interested, so great as not to leave a majority competent, the common council may appoint commissioners pro tempore. Under the statute and our decisions, these causes clearly show the two commissioners named to have been incompetent.

The eleventh subdivision of section 240, R. S. 1881, which has been in force since 1852, 2 R. S. 1876, p. 316, provides that "When a person is required to be disinterested or indifferent in acting on any question or matter affecting other parties, consanguinity or affinity within the sixth degree, inclusive, by the civil law rules, or within the degree of second cousin, inclusive, shall be deemed to disqualify such person from acting, except by consent of parties."

Under this statute it was held in the case of High v. Big Creek Ditching Ass'n, 44 Ind. 356, that an appraiser appointed to appraise the benefits and damages to accrue to land-owners along the line of a ditch, whose sister-in-law, niece and nephew own land along the line of the ditch, is not a disinterested party, and is disqualified from acting. See, also, cases therein cited; also, Hudspeth v. Herston, 64 Ind. 133; Mills Em. Dom., section 227; Clifford v. York Co. Comm'rs, 59 Me. 262; State v. Delesdernier, 11 Me. 473; State v. Crane, 36 N.J.L. 394; Friend, Appellant, 53 Me. 387; Rock Island, etc., R. R. Co. v. Lynch, 23 Ill. 597; State v. Jersey City, 25 N.J.L. 309. That all parties whose lands are to be assessed, or who are in any way to be affected by the proceedings, have the right to demand that the commissioners shall be impartial, is apparent to any one. The above adjudications are all upon statutes with provisions similar to the statute under consideration, as to the qualifications of appraisers and commissioners, and hence are authority here.

This position does not seem to be controverted by counsel for appellee, but their contention is that the question can not be made as attempted by appellant in the fifth and sixth grounds of objections to the proceedings, as filed in circuit court. They say:

"We submit to this court that the court below committed no error in sustaining the demurrers to these 'grounds of objection,' for the following reasons, to wit:

"1st. For the reason that they seek to raise a question of which the city commissioners have exclusive jurisdiction.

"2d. For the reason that they seek to raise a question prohibited by the statute.

"3d. For the reason that the appellant waived his right to file the objections in the court below on account of having failed to present the same before the commissioners and council, as provided in section 3167, R. S. 1881."

Section 3180 does provide that the question as to whether proper assessments were made in favor of, or against, persons, other than the appealing party, shall not be tried on appeal to the circuit court; but, clearly, under this section, the appellant may put in issue and have tried the question as to whether or not too much is assessed against him, or as to whether or not he should have been assessed at all. The section clearly implies this. And for the purpose of showing that one of the commissioners is disqualified because interested, it may be shown that he is the owner of property upon the line of the street in as close proximity as that of the appellant, and that because of such proximity and liability to assessment for benefits, the commissioner is financially interested.

Especially should this be so, when, as in this case, it is alleged, that by reason of these facts he was prejudiced, biased and influenced in assessing greater benefits to the property of the appellant. Mills Em. Dom., section 234. As to whether or not appellant waived his objection to the competency of the two commissioners is a more serious question.

Section 3167 of the act provides that any person interested in the proceedings, or whose property is affected, may present his objections, and if the commissioners be found interested, commissioners pro tempore may be appointed by the common council.

Section 3168 provides for two meetings of the commissioners. At the first they determine simply the property that will be affected in the way of benefits and damages. No notice of this meeting is required to be given to property-owners. It is provided, however, by the same section, that with the report of the proceedings and result of this meeting, the commissioners shall file a notice of the time and place, when and where, they will meet to determine the question of benefits and damages to real estate. Upon this being done, the city clerk must issue like notices, which must be served upon the owners of property named in the report. These notices must state generally the character of the proposed improvement, etc., but need not describe the property to be affected.

At the second meeting the commissioners may subpoena witnesses and hear testimony bearing upon questions to be then determined by "all matters concerning the laying out of the street," etc. Sections 3169 and 3170.

Appellees contend that the appellant should have made his objections to the commissioners at this meeting, and that because he did not he waived his objections. The general rule is that such objections must be made at the earliest opportunity, so that the proceedings shall not be allowed to proceed to a fruitless result, with the accumulation of large cost, and that if not so made, they will be deemed to be waived. Mills Em. Dom., section 251; Fowler v. County Comm'rs, 6 Allen 92; Mansfield, etc., R. R. Co....

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34 cases
  • Stahl v. Bd. of Sup'rs of Ringgold Cnty.
    • United States
    • Iowa Supreme Court
    • January 12, 1920
    ...who personally has a property interest in the result of the deliberations of the body of which he is a member.” And it is held in Bradley v. City, 99 Ind. 417, that though appeal lies, a person who is financially interested in the opening of a street, or who is a father-in-law to a person w......
  • Stahl v. Board of Sup'rs of Ringgold County
    • United States
    • Iowa Supreme Court
    • January 12, 1920
    ...are not, in strictness, judicial acts. But an interest less than Mr. Vorhies had, has set aside actions in substance like his. See Bradley v. City, 99 Ind. 417; Appeal McClure, 137 Pa. 590 (20 A. 711); Betts v. City of Naperville, 214 Ill. 380 (73 N.E. 752); Chase v. City of Evanston, 172 I......
  • City of Terre Haute v. Evansville & T. H. R. Co.
    • United States
    • Indiana Supreme Court
    • February 16, 1897
    ...provision is made for the appointment of commissioners pro tempore. Rev. St. 1894, § 3630 (Rev. St. 1881, § 3167); Bradley v. City of Frankfort, 99 Ind. 417. The constitutional right of a property owner to have his damages assessed by disinterested persons is satisfied if an appeal is given......
  • City of Terre Haute v. Evansville and Terre Haute Railroad Company
    • United States
    • Indiana Supreme Court
    • February 16, 1897
    ... ... which is affected, provision is made for the appointment of ... commissioners pro tempore. Section 3630, Burns' ... R. S. 1894; Bradley v. City of Frankfort, ... 99 Ind. 417 ...          The ... constitutional right of a property owner to have his damages ... assessed by ... ...
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