Charles v. City of Marion

• Decision Date: 22 March 1900
• Docket Number: 9,755.
• Citation: 100 F. 538
• Parties: CHARLES v. CITY OF MARION et al.
• Court: United States Circuit Court, District of Indiana

100 F. 538

CHARLES v. CITY OF MARION et al.

No. 9,755.

United States Circuit Court, D. Indiana.

March 22, 1900

Miller Elam & Fesler and St. John & Charles, for complainant.

Hawkins & Smith and Sweazey & Condo, for defendants.

BAKER District Judge.

This suit has been before the court on an application for a temporary restraining order. Charles v. City of Marion, 98 F. 166. It is now before the court on a demurrer to the amended bill of complaint, on the ground that it does not state facts sufficient to constitute a cause of action entitling the complainant to equitable relief. The suit is brought to restrain the defendants from establishing and enforcing an assessment for the whole cost of paving a street bordering on lots and parcels os land owned by the complainant. The proceedings are had under the act of March 8, 1889, as amended in 1891; the same being section 4288 et seq., 2 Burns' Rev.St. 1894. The bill alleges that the defendants are proceeding to pave the street for a distance of several hundred feet along and in front of lots and parcels of land owned by the complainant which abut on the street so to be improved. It is alleged that the city intends, gives out, and threatens that it will assess the whole cost for such improvement on the abutting land of the complainant without any regard to the peculiar benefits which his land may receive by reason of such improvement. It is further alleged that the cost of such improvement, if made as threatened, will exceed the entire value of the land for a large part of the distance to which said improvement will extend in front of said land, and that for the residue of such distance the assessment will be at least twice as great as the special benefits to be derived therefrom. On the application for a temporary restraining order, the court held that the statute under which these proceedings are prosecuted was invalid, for the reason that it required the whole cost of the improvement to be assessed upon the abutting lots and parcels of land, without any regard to the special benefits to be derived from such improvement, and that there was no provision made for determining and assessing on such lots and parcels of land only so much of the cost of the improvement as should be found equal to the special benefits received by the property abutting on the improvement.

Some further observations than those made in the former opinion in reference to the judicial and legislative policy of the state on the subject of such assessments, may not be inappropriate. In the act approved December 20, 1865 (Acts 1865 (called Sess.) p. 30), which is in substance the same as the present statute, section 66 provides as follows:

'In all contracts specified in the last preceding section, the cost of any such improvement shall be estimated according to the whole length of the street or alley, or the part thereof to be improved, per running foot, and the city shall be liable to the contractors for so much thereof only as is occupied by public grounds of the city bordering thereon, and the owners of such lots bordering on such streets or alleys, or the part thereof to be improved, shall be liable to the contractors for their proportion of the cost in the ration of the front line of lots owned by them to the whole improved line.'

In the case of Palmer v. Stumph, 29 Ind. 329, the supreme court held that this method of assessment was constitutional. After referring to the legislation of the state prior to the adoption of the present constitution of 1851 to prove that assessments of the cost of a street or alley improvement by the front-foot rule was a recognized legislative method of assessment, the court, referring to the above-quoted provision, proceeds to say:

'By this act the rate is the same upon every owner within the reach of the assessment. That is the exact benefit each may receive from the improvement of the street. The legislature have adopted this method of reaching that result. It is certainly reasonable to suppose that, as a rule, property along the line of a street improvement will be equally benefited; that, as a rule, the property fronting upon a street, foot by foot, will be of equal value, and should therefore be equally assessed.'

This case has always been regarded as settling the constitutionality of legislation assessing the entire cost of a street or alley improvement by the running front foot, without any reference to the actual benefits specially received by the property abutting on such improvement. It holds that the legislature may constitutionally determine that 'the property fronting upon a street, foot by foot, will be of equal value, and should therefore be equally assessed,' and that such legislative determination, however erroneous it may be as a matter of fact, concludes any judicial inquiry. The legislature, the municipal corporations, the judiciary, and the people of the state have always recognized and acted upon the rule above announced.

In Ross v. Stackhouse, 114 Ind. 200, 206, 16 N.E. 501, discussing the principle upon which a statute authorizing assessments for street improvements, by the front-foot rule is upheld, Mitchell, C.J., speaking for the court, said:

'Special assessments for street and other similar improvements are upheld upon the theory that each lot or tract of land assessed is benefited, in a special and peculiar manner, in a sum equal to the amount estimated or assessed against it. The lien is therefore enforceable against the land upon the theory that the owner has received a personal and pecuniary benefit by the improvement, which the citizens do not share in common.'

-- Citing Heick v. Voight, 110 Ind. 279, 11 N.E. 306; Lipes v. Hand, 104 Ind. 503, 1 N.E. 871, 4 N.E. 160; Chamberlain v. City of Cleveland, 34 Ohio St. 551; Stuart v. Palmer, 74 N.Y. 183; Hammett v. City of Philadelphia, 65 Pa.St. 146.

In Garvin v. Daussman, 114 Ind. 429, 434, 16 N.E. 826, in upholding an assessment by the front-foot rule, the same judge, speaking for the court, said:

'The principle which underlies and upholds special assessments, such as that involved in the present case, is that the lands assessed are enhanced in value to an amount equal to the cost of the improvement, which is to be apportioned, among those specially benefited, in the manner prescribed by law.'

The manner prescribed by the law then under consideration by the court was that the assessment of the entire cost of the street improvement, except for the cost of street and alley crossings, should be assessed by the front-foot rule against the lots and parcels of land bordering on the improvement. This rule was upheld on the theory above stated, and the court further held:

'If, therefore, the law provides for giving notice, and for a method whereby owner may ultimately challenge the correctness of the assessment made against his property in respect to whether it was made in good faith, without intervening error or mistake, and according to the method and under the safeguards provided by law, the constitutional provision is to be deemed satisfied.'

The court holds that the assessment by the front-foot rule prescribed by the statute is valid, and that such assessment will be upheld and enforced if it is made in good faith without mistake or intervening error, according to the method and under the safeguards provided by law. Thus, it is seen that the only thing open upon the hearing is to ascertain whether there is error mistake, in the engineer's report and estimate, in failing to conform to the method...