Campbell v. The Board of Commissioners of Monroe County
| Decision Date | 26 March 1889 |
| Docket Number | 13,302 |
| Citation | 20 N.E. 772,118 Ind. 119 |
| Parties | Campbell et al. v. The Board of Commissioners of Monroe County |
| Court | Indiana Supreme Court |
From the Monroe Circuit Court.
Judgment reversed, with instructions to sustain the appellants' motion for a new trial, and for proceedings in accordance with this opinion.
M. F Dunn, G. G. Dunn, W. H. East, E. Corr and M. M. Dunlap, for appellants.
J. H Louden, W. P. Rogers, J. W. Buskirk and -- Buskirk, for appellee.
The appellee's counsel insist that there can be no appeal from the order of the board of commissioners directing a reassessment to pay the expense of constructing a free gravel road. In this they are in error. The board has no authority to make a reassessment without notice, and upon notice the land-owners are entitled to come in and defend. Board, etc., v. Fullen, post, p. 158; Board, etc., v. Fahlor, 114 Ind. 176, 15 N.E. 830; Abbett v. Board, etc., 114 Ind. 61, 16 N.E. 127; Board, etc., v. Fullen, 111 Ind. 410; Board, etc., v. Gruver, 115 Ind. 224, 17 N.E. 290. The notice of the intention to make a reassessment does not, however, bring before the court the validity of the original assessment, for that is adjudicated by the judgment rendered in the original assessment proceedings, but it does bring before the court all questions legitimately connected with the second assessment. In order to entitle the board to make a reassessment notice is essential, for in all proceedings affecting property rights notice is essential to constitute due process of law. Kuntz v. Sumption, 117 Ind. 1, 19 N.E. 474. The proceedings in the matter of the reassessment are founded on the second notice, and in the proper case judgment may be rendered directing a reassessment, and where there is a judgment there is a right of appeal.
The controlling facts are embodied in the special finding, of which we make a synopsis: On the 1st day of May, 1884, a petition was filed praying for the construction of a free gravel road; notice was given, and judgment was entered directing the construction of the road and the assessment of benefits. On the 18th day of February, 1886, the auditor discovered that the benefits were insufficient to pay the expense of constructing the road, and called a meeting of the board of commissioners in special session for the 18th day of February, 1886. On that day the board convened and the appellants appeared and remonstrated against making any addition to the original assessment. The original assessment was $ 10,170.33 less than the expense of constructing the road, and to meet the deficiency forty-five per cent. was by the auditor added to the original assessment of benefits. The addition of the forty-five per cent. was made by the auditor previous to the meeting of the commissioners, was approved, and the order of the board was declared to be merely advisory. It thus appears that it was the judgment of the auditor that determined the reassessment, and not that of the board.
We are of the opinion that the auditor has no authority to increase an assessment beyond the sum ascertained and assessed as benefits in due course of law. Section 5096, R. S. 1881, must be construed as meaning that the auditor can only add to the assessment when it appears that the addition will not make the assessment exceed the benefits ascertained and reported in compliance with the statute. The auditor can not determine the benefits, nor, indeed, any other purely judicial question. To hold otherwise would be to invest the auditor with power arbitrarily, without notice, and without viewers, to add to the burdens of the land-owners, and this would be to violate some of the plainest principles of constitutional law. If the auditor may add forty-five per cent. on his own motion, and without notice, he may, on the same theory, double the assessment. Certainly it was not contemplated that he should have any such power. It would be rank injustice to land-owners to concede him such authority, for it might well be that the assessment thus increased would greatly exceed the benefits to the land. It would, at all events, deprive the land-owners of the constitutional right to have benefits assessed by due process of law. It is too well settled to admit of doubt that no greater sum than the benefit which accrues can be assessed against the land. Proceedings like these are only sustainable on the ground that the land receives a benefit equal to the assessment. Board, etc., v. Fullen, 111 Ind. 410 (420).
The question with which w...
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