City of Evansville v. Miller

• Decision Date: 26 January 1897
• Docket Number: 18,032
• Citation: 45 N.E. 1054,146 Ind. 613
• Parties: City of Evansville et al. v. Miller
• Court: Indiana Supreme Court

45 N.E. 1054

146 Ind. 613

City of Evansville et al. v. Miller

No. 18,032

Supreme Court of Indiana

January 26, 1897

From the Vanderburgh Superior Court.

Affirmed.

G. A Cunningham and E. Q. Lockyear, for appellants.

Gilchrist & DeBruler, for appellee.

OPINION

Jordan, C. J.

This action was instituted by appellee to prevent the collection of certain assessments, levied by the board of public works of the city of Evansville on certain real estate owned by appellee and situated within the city. The theory of the complaint is that this assessment of $ 199.00 is void by reason of the invalidity in part of an ordinance under which the city undertook to levy said assessment. A trial resulted in a finding by the court in favor of appellee, and a judgment was awarded canceling the assessment and adjudging void the lien claimed thereunder by the city.

The facts in the record show that the appellee, Miller, in May 1895, became the owner, by purchase, of lots 6, 7, 8 and 9 in block 7, of Goodsell's enlargement of the city of Evansville, and that the dwelling house situated on said premises at the time he became the owner thereof had been partially destroyed by fire. On June 24, 1895, the common council of that city passed an ordinance defining nuisances, etc. The first section of this ordinance provided as follows:

"Be it ordained by the common council of the city of Evansville, That any building, shed, outhouse or structure of any kind that shall be partially destroyed by fire, or from any other cause, and shall be suffered by the owner thereof to remain in such condition, after being notified by the Department of Public Works to remove, repair or rebuild the same, shall constitute a nuisance. Any building, shed, outhouse, or structure of any kind that shall become filthy or unwholesome is hereby declared to be a nuisance."

The part assailed by the appellee as invalid is indicated by italics. Section two provides that whenever the department of public works shall have knowledge "that any nuisance such as is defined in section one of this ordinance exists in said city, it shall thereupon make an order requiring the owner thereof to abate the same within such time as said department may fix." This section further provides for giving notice to such owner, of the order, and declares it lawful for said department to remove such buildings or structures in whole or in part by persons employed by it, or by letting such work by contract, etc. Section three contains provisions for assessing the cost of the removal of the building against the real estate in like manner as assessments of benefits are made. On July 13, 1895, the department of public works of the city, under this ordinance, made an order as follows:

"And now it is ordered by the department of public works of the city of Evansville:

"That, Whereas, the buildings situate on lots 6, 7, 8, and 9, in block 7, in Goodsell's enlargement in said city, have been partially destroyed by fire, and have been suffered by the owner thereof to remain in such condition for a period of twelve months, and by reason thereof have created a nuisance.

"Now, therefore, it is ordered by said department that the owner of said real estate abate said nuisance by the removal of the whole of said building, or so much thereof as remains unconsumed, together with all offal, dirt, debris of every kind situate thereon, on or before the 17th day of August, 1895.

"And it appearing that John A. Miller, the owner of said real estate, is a nonresident of the city of Evansville, it is ordered that he be notified of this resolution by publication in a newspaper published in said city.

"At the expiration of said time, if such owner shall not have abated such nuisance, this department will proceed to abate the same by the removal of such structure, and by such other means as may be deemed necessary."

After the time designated in this order for the removal of the building by appellee, the board of public works made the following order for its removal:

"It is hereby ordered and directed by the board of public works of the city of Evansville that the clerk advertise for bids for removing all that part of the 'Jordan Giles' residence on Washington avenue, above the stone foundation, stacking all good lumber and brick on the premises and removing all rubbish and burnt lumber from the premises."

It was admitted by the parties in the lower court that the proceedings by the city in the matter in controversy were regular and consistent with the requirements of the ordinance, and that the assessment to the amount of $ 199.00 was made against the real estate of appellee as alleged in the complaint, and that appellant, Schwacke, had complied with his contract in removing the partially destroyed building from the premises in question.

It is clear, we think, that the city of Evansville, through her duly constituted authorities, in ordering the removal of this partially destroyed building, and in assessing the expense of such work upon appellee's real estate, proceeded under that part of section one of the ordinance which declares "that any building, etc., that shall be partially destroyed by fire, etc., and suffered by the owner to remain in such condition after being notified, etc., to remove repair, etc., shall constitute a nuisance." The controlling question, therefore, for our decision is that which relates to the validity of this portion of the ordinance, for, as this is the basis upon which the city's proceedings rest, its invalidity must necessarily render them inoperative and void. Counsel for appellee deny that the common council of the city of Evansville has, either expressly or impliedly, the power to declare by ordinance that a building partially destroyed and suffered to remain in that condition, shall, by reason of such facts alone, necessarily constitute a nuisance. It will be seen that the ordinance in dispute ordains "that any building, etc., partially destroyed by fire, or any other cause, and suffered to remain in such condition after notice to the owner, etc., shall constitute a nuisance." The latter is declared to exist as the result of these naked facts, and authority is given to the department of public works to...