City of Indianapolis v. State ex rel. Barnett

• Decision Date: 11 June 1909
• Docket Number: No. 21354.,21354.
• Parties: CITY OF INDIANAPOLIS et al. v. STATE exrel. BARNETT et al.
• Court: Indiana Supreme Court

172 Ind. 472

132 N.E. 165

CITY OF INDIANAPOLIS et al.

v.STATE exrel. BARNETT et al.

No. 21354.

Supreme Court of Indiana.

June 11, 1909.

Appeal from Circuit Court, Marion County.

Mandamus by the State, on the relation of James H. Barnett and others, against the City of Indianapolis and others. From an adverse judgment, defendants appeal. Affirmed.Frederick E. Matson, of Indianapolis, Crate D. Bowen, of Miami, Fla., James D. Peirce, of Indianapolis, and Joseph F. Cowern, of St. Paul, Minn., for appellants.

Smith, Duncan, Hornbrook & Smith, of Indianapolis, for appellees.

HADLEY, J.

In 1907 the board of public works of appellant city, by regular proceedings, caused the paving with brick of State street, from English avenue to Prospect street. On August 30 the board accepted said work, and caused a primary assessment roll to be made out, as required by statute. Notice of a hearing, as provided in section 111 of the act of 1905 (Acts 1905, pp. 219, 292; section 8716, Burns' 1908), having been given, divers persons, who had been assessed benefits, appeared before the board, and remonstrated against their several assessments as excessive. The board considered the several complaints, and settled all assessments, and on October 4 delivered the final assessment roll to the department of finance, whereupon 47 persons, under the proviso clause of said section 111, filed their petition in the Marion circuit court, showing therein that their several assessments, as made, exceeded the benefits received. The court thereupon appointed three appraisers to review and modify said assessments if found excessive, which resulted in the appraisers' finding and reporting a reduction in said assessments- one less, and forty-six more, than 10 per cent.

Appellant board of public works having refused to certify to the treasurer of Marion county the assessments against appellees, as modified by said appraisers, this action in mandamus was brought to enforce such certification. The complaint and alternative writ set out the proceedings by the board of works and in the circuit court, and then allege that a duly certified copy of such proceedings was presented to the board of public works, with the request that said board certify the assessment as corrected to the treasurer of Marion county; that said board declined and refused so to certify said corrected assessment, on the ground that the Marion circuit court had no jurisdiction of the matters presented to it, and that the proceedings had by the appraisers and the order of the court upon their report were null and void. Appellants' demurrer to the alternative writ was overruled, and upon their refusing to plead further, judgment was rendered against them.

It is asserted by appellants that the entire proceeding in the circuit court is void, because the proviso clause in section 8716, supra, which purports to authorize the proceeding, is unconstitutional. This presents the only question for decision.

The provisions of the city charter, with reference to street improvements, provide for the adoption by the board of public works of a resolution ordering the improvement, the preparation of a preliminary assessment roll, and notice of a hearing upon the same at a date fixed therein, at which all owners of real estate assessed, who are dissatisfied with the assessment made by the board, may appear and remonstrate.

[1] Section 8716, supra, is, in part, as follows:

“The board shall complete said roll and render its decision as to all benefits by modifying or confirming said assessment roll to conform to its findings, showing the total amount of special benefits opposite each name and description of each piece of property on said roll. When completed, said assessment roll shall be delivered to the department of finance. The decision of such board as to all such benefits shall be final and conclusive: Provided, that if the owner of any lot or parcel of land so assessed as aforesaid, shall, within ten days from the completion of said assessment roll by his written verified petition to the circuit or superior court of the county in which said city is situated, show that the amount so assessed against such lot or parcel of land is excessive, and that such real estate is not benefited by said improvement in such amount, the court shall, without delay, appoint three disinterested freeholders of said city to reassess such benefits, if any there be, accruing to the real estate described in such petition. Such appraisers shall at once take an oath before the clerk of said court that they will faithfully, honestly and impartially discharge the duties required of them, and proceed forthwith to view the proposed improvement and the real estate described in such petition, and report in writing to said court within three days after viewing such improvement and premises whether the said assessment complained of exceed the special benefits to said property, and if so, in what amount, if any, such real estate is or will be specially benefited by such improvement, and such appraisers may grant a hearing to complainants. Such report shall be entered as a judgment upon the records of said court, and a copy thereof filed by such appraisers with the said board, and such report shall be final and conclusive on all parties thereto.”

The insistence is that the above proviso is repugnant to article 3 of the state Constitution, which forbids any person charged with official duties under one department of the state government from exercising any function of another department, and is also in conflict with article 7, § 1, of the Constitution, which affirms that the judicial power of the state shall be vested in the Supreme, circuit and such other courts as may be established by law. It is argued that these provisions of the Constitution are violated, in that the statute deprives the court of the opportunity to exercise a discretion with respect to the fixing of the amount of benefits accruing to the several properties from the proposed improvement, and it is, in effect, compelled to adopt the report of the appraisers as its judgment, which amounts to an unwarranted encroachment of the legislative department of the state government upon the independence of the judicial department. In support of this view, our attention is directed to Board, etc., v. Gwin (1894) 136 Ind. 562, 585, 36 N. E. 237, 22 L. R. A. 402;State ex rel. v. Noble (1889) 118 Ind. 350, 370, 21 N. E. 244, 4 L. R. A. 101, 10 Am. St. Rep. 143;Langenberg v. Decker (1892) 131 Ind. 471, 478, 31 N. E. 190, 16 L. R. A. 108. We are in accord with the doctrine of these cases, but unable to believe it is applicable to the facts of this case.

[3] In the first place, the exclusive, original jurisdiction in street improvement proceedings is in the city board of public works. The circuit and superior courts are required by the Legislature to perform in particular emergencies certain things in aid of the board's jurisdiction-not to hear appeals, not to review any act of the board, nor to determine or give direction to any step in the proceeding. The sum total of the authority conferred upon the court is to appoint appraisers, and adjudge the costs incident to the review, in a manner admitting of no discretion but as specifically pointed out by the statute. The former of these duties is, in its nature, executive; the latter, a mere incident of the former. The court is under no duty to consider, or even heed, the report. It has no power to reject or approve it. The statute does not require either in terms or by implication. The improvement proceedings is not in the circuit court, and the appraisers, though appointed by the judge of that court, were not the agents of that court. The statute reads:

“Such report shall be entered as a judgment upon the records of said court, and a copy...