City of Evansville v. Summers

• Decision Date: 06 November 1886
• Docket Number: 13,386
• Citation: 9 N.E. 81,108 Ind. 189
• Parties: The City of Evansville et al. v. Summers
• Court: Indiana Supreme Court

9 N.E. 81

108 Ind. 189

The City of Evansville et al. v. Summers

No. 13,386

Supreme Court of Indiana

November 6, 1886

From the Vanderburgh Superior Court.

Judgment reversed, at appellee's cost, and cause remanded, with instructions to the court to sustain the demurrer to the complaint.

J. B Rucker, for appellants.

R. D Richardson and J. T. Walker, for appellee.

OPINION

Zollars, J.

The city of Evansville has never adopted the general law for the incorporation of cities, but has a special charter, granted in 1847.

In the fourth clause of the schedule, which is annexed to, and forms a part of, the Constitution of 1851, it is provided that "All acts of incorporation for municipal purposes shall continue in force under this Constitution until such time as the General Assembly shall, in its discretion, modify or repeal the same."

That the special charter, thus granted and retained, may be amended by special or general acts, is not here questioned, and is well settled. Longworth v. Common Council of Evansville, 32 Ind. 322; Warren v. City of Evansville, 106 Ind. 104, 5 N.E. 876; City of Evansville v. Bayard, 39 Ind. 450; Eichels v. Evansville Street R. W. Co., 78 Ind. 261 (41 Am. R. 561); Chamberlain v. City of Evansville, 77 Ind. 542.

As amended in 1881, Acts 1881, p. 22, the 58th section of the special charter confers authority upon the city to improve the streets, alleys and sidewalks, either upon petition by the abutting lot-owners, or by a vote of two-thirds of all the members of the common council, and to assess the expense and cost of such improvements upon the lots, or parts of lots, fronting, abutting or adjoining such improved street or alley, and to enforce the collection of such assessments by a sale of the lots, in the manner provided, or by an action to enforce the lien of the assessments, etc. When the improvements are made upon contract, the contractor accepts the assessments as so much money, and enforces the collection of them by the remedies above stated.

In that section there is this proviso: "Provided, further, That the city of Evansville may pay out of its treasury a half of the cost and expenses of such improvements or repairs other than sidewalks and alleys; and in the event it elects so to do, the other half of such costs and expenses shall be assessed and charged on all lots or parts of lots abutting or adjoining as aforesaid; and the provisions of this act, including remedies, shall govern any improvements or repairs made hereunder, whether the same be charged in whole or in part against the lots or parts of lots abutting or adjoining as aforesaid."

By a general ordinance, passed in May last, it was ordained that thereafter the cost of street improvements, such as may be made under the foregoing amended section of the charter, should and shall be paid, one-third by the city and two-thirds by the abutters, with this proviso: "Provided, however, that the city shall pay for street intersections, and this ordinance shall not apply to sidewalk improvements, nor where the only improvement made is the grading of the street."

Subsequent to the passage of the above general ordinance, the common council passed an ordinance for the improvement of certain streets, and entered into a contract with the city's co-appellants herein for the doing of the work.

Appellee instituted this action to enjoin the city authorities from paying the one-third of the cost of the improvements out of the general fund of the city.

It is conceded, that under the above mentioned section of the city charter, such payment might lawfully be made, but it is contended, that that section has been superseded and repealed by a general law enacted in 1885. Acts 1885, p. 207.

That contention presents the controlling question in the case. The title of the act of 1885 is "An act concerning contracts made by order of the common council of cities for the grading and improvement of streets and alleys, providing the manner of estimating the cost thereof and of enforcing the same against the lots and unplatted lands abutting on such streets or alleys, fixing the liability therefor, and declaring an emergency."

The act, so far as need be set out in full, is as follows: "Be it enacted, * * * That in all contracts * * hereafter made by order and under the direction of the common council of any city in this State for the grading, paving, guttering and improvement of any street or alley in such city, the cost of such improvements 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 contractor for so much thereof only as is occupied by public grounds of the city bordering thereon, and the crossing of streets and alleys; and the owners of lots bordering on such street or alley or the part thereof to be improved, shall be liable to the contractor for their proportion of the cost, in the ratio of the front lines of lots owned by them to the whole improved line."

Does this act repeal that portion of the above section of the special charter of the city of Evansville, which authorizes the payment of one-third of the cost of such improvements out of the city treasury, if the common council shall so determine?

Did the Legislature so intend in the enactment of the statute?

In the construction of statutes, the prime object is to ascertain and carry out the purpose of the Legislature in their enactment. To do this, the words used in the instrument should be first considered in their literal and ordinary signification, but it is often necessary to inquire beyond such meaning of words.

In the case of the City of Valparaiso v. Gardner, 97 Ind. 1 (6) (49 Am. R. 416), in speaking of the rules of construction, this court said: "While it is our duty to yield to the words of the Constitution, still, in determining what meaning they were intended to have, it is proper to consider the circumstances under which the provision was adopted, and the object it was intended to accomplish. Cooley Const. Lim. (5th ed.), 78, 79."

In the case of Maxwell v. Collins, 8 Ind. 38, it was said: "It is a settled rule of interpretation of statutes, that the application of the words of a single statute may be enlarged or restrained to bring the operation of the act within the intention of the Legislature, when violence will not be done by such interpretation to the language of the statute."

In the case of Taylor v. Board, etc., 67 Ind. 383 (384), it was said: "It is a settled principle that, in construing a statute, the intention of the Legislature must govern. To ascertain this intention, we must look to the letter of the statute, to other statutes upon the same subject, * * * to their spirit and purpose, and harmonize what may appear to be conflicting, so as to bring them into concord with a general and uniform system."

In the case of Prather v. Jeffersonville, etc., R. R. Co., 52 Ind. 16, it was said: "So in case of doubt or uncertainty, acts in pari materia, passed before or after, and whether repealed or unrepealed, may be referred to in order to discern the intent of the Legislature in the use of particular terms; and, within the same rule and the reason of it, contemporaneous legislation, although not precisely in pari materia, may be referred to for the same purpose."

And in the case of State, ex rel., v. Forkner, 70 Ind. 241, it was said: "The chief thing to be explored is the intention. This the judiciary is to seek in the history of legislation; in the objects contemplated, the evils to be corrected, and the remedies provided."

And so in the case of State v. Canton, 43 Mo. 48, it was said: "It is an established rule, applicable to the construction of all remedial statutes,...