Citizens Trust & Savings Bank of South Bend v. Fletcher American Co.
| Decision Date | 20 June 1934 |
| Docket Number | 26462 |
| Citation | 190 N.E. 868,207 Ind. 328 |
| Parties | CITIZENS TRUST & SAVINGS BANK OF SOUTH BEND v. FLETCHER AMERICAN CO. et al |
| Court | Indiana Supreme Court |
[Rehearing denied November 1, 1934.]
1. MUNICIPAL CORPORATIONS---Public Improvement Liens---Priorities.---Liens of improvement bonds for street and sewer improvements are purely statutory, and their character, extent, and priorities must be determined from the statute. p. 330.
2. MUNICIPAL CORPORATIONS---Public Improvement Liens---Priorities.---The shaping of policies as to priorities of public improvement liens is a matter for the legislature, not the courts. p. 331.
3. MUNICIPAL CORPORATIONS---Public Improvement Liens---Priorities.---Where street and sewer improvement liens are created against the same property at different times, each under a statute granting "precedence over all liens, except taxes," the liens are held equal neither having precedence over the other. p. 332.
4. STATUTES---Construction---Legislative Intent.---In construing a statute, Supreme Court's effort is to determine the legislative intent. p. 334.
5. STATUTES---Construction---Interpretation by Intermediate Courts---Weight.---Where words in a statute are of doubtful import, Supreme Court will consider construction put upon them by intermediate courts or by governmental departments p. 334.
6. STATUTES---Construction---Re-Enacted Legislation---Interpretation by Intermediate Courts.---When the legislature uses the same language in re-enacting legislation which has been previously construed by intermediate courts or governmental departments, it may be presumed to have adopted such construction, provided such construction has been generally recognized and acquiesced in to such an extent that legislative knowledge of it may be inferred, but the Supreme Court is not bound by such interpretation prior to re-enactment and especially where the language involved is clear and unequivocal. p. 334.
7. STATUTES---Construction---Re-Enacted Legislation---Interpretation by Court of Last Resort.---Where a statute is specifically construed by a court of last resort and thereafter substantially re-enacted, the legislature will be presumed to have adopted the construction. p. 335.
Action by Fletcher American Company and another to foreclose liens of public improvement bonds, wherein Citizens Trust and Savings Bank of South Bend claimed priority of its lien being a public improvement lien on the same property attached prior to that of plaintiffs.
From a judgment for plaintiffs, defendant appealed. Transferred from the Appellate Court. Reversed.
Seebirt, Oare, Deahl & Omacht, of South Bend, and Wilson & Wilson and Crumpacker & Friedrich, all of Hammond, for appellant.
Hugh E. Carroll, Paul F. Roundtree, and Charles M. Reed, all of East Chicago, and Matson, Ross, McCord & Clifford, of Indianapolis, for appellees.
Appellees are the owners of public improvement bonds issued against certain property by the city of Hammond, under Improvement Resolution No. 1497, pursuant to sections 10487-10492, Burns' 1926. Appellant is the owner of improvement bonds issued against the same property by the city of Hammond, pursuant to sections 10566-10575, Burns' 1926. The lien of appellees' bonds, issued under Improvement Resolution No. 1497, attached September 13, 1926, and the lien of those issued under Improvement Resolution No. 1534, attached November 15, 1926. Appellant's bonds were issued under Improvement Resolution No. 1281, and the lien attached on September 2, 1925. All of the bonds were issued for the improvement of, and are liens upon, the same real estate.
Appellees filed a complaint in two paragraphs; the first seeking foreclosure under the lien resulting from Improvement Resolution No. 1497, and the second seeking foreclosure under the lien resulting from Improvement Resolution No. 1534. Appellant answered this complaint in three paragraphs; the first, a general denial, the second asserting that its lien under Improvement Resolution No. 1281 was equal in rank and priority to the liens claimed by appellees, and the third asserting that its lien having first attached is entitled to precedence over appellees' liens. The cause was submitted to the court upon stipulated facts, and the court found for appellees, that their liens were prior to appellant's lien, and judgment was had accordingly.
The error assigned here is the overruling of appellant's motion for a new trial. But a single question is presented. Where two or more public improvements are made at different times, under either or both of the statutes above referred to, and liens arise upon the same property for assessed benefits, are the liens of the assessments equal, or does the first or the last lien have priority?
The statute under which appellees' liens arose provides that the lien 'shall have precedence over all liens, except taxes.' Burns' 1926, § 10488. By provision of the statute under which appellant's lien arose, the character of the lien is controlled by section 10445, Burns' 1926. It, also, provides that the lien 'shall have precedence over all liens, except taxes.' Each side contends that the statute gives its lien priority over the other.
The liens are purely statutory, and their character, extent, and priorities must be determined from the statute. State ex rel. Ely, Drainage Commissioner, v. AEtna Life Ins. Co. (1889) 117 Ind. 251, 20 N.E. 144; Wilt v. Bueter, Treas. (1916) 186 Ind. 98, 111 N.E. 926, 115 N.E. 49; Brownell Improvement Co. v. Nixon (1910) 48 Ind.App. 195, 92 N.E. 693, 695, 95 N.E. 585.
This same question was before the Appellate Court in the case of Burke v. Lukens (1895) 12 Ind.App. 648, 40 N.E. 641, 642, 54 Am. St. Rep. 539. The court said:
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