City of Indianapolis v. Dillon

• Citation: 6 N.E.2d 966,212 Ind. 172
• Decision Date: 17 March 1937
• Docket Number: 26804.
• Parties: CITY OF INDIANAPOLIS et al. v. DILLON et al.
• Court: Supreme Court of Indiana

6 N.E.2d 966

212 Ind. 172

CITY OF INDIANAPOLIS et al. v. DILLON et al.

No. 26804.

Supreme Court of Indiana

March 17, 1937

Appeal from Marion Circuit Court; Earl R. Cox, Judge.

Edward H. Knight, James E. Deery, and Herbert M Spencer, all of Indianapolis, for appellants.

Samuel Ashby and Charles W. Appleman, both of Indianapolis, for appellees.

ROLL Judge.

This action was brought to enjoin the collection of an assessment against the property of appellees, levied as the result of a street improvement proceeding.

It appears from the complaint that North Meridian street from Fifty-Fourth street north to Westfield boulevard had been theretofore improved by constructing a pavement 24 feet wide said pavement was asphalt laid upon a concrete base; that in August, 1929, the city by and through its Board of Public Works adopted improvement resolution No. 14406, for the purpose of widening the above-mentioned part of North Meridian street, by constructing a 13-foot strip on either side of said 24-foot pavement. Proceedings were had by the Board of Public Works looking to the completion of said improvement under the provisions of section 10440 et seq. Burns' R.St.1926, section 11660 et seq., Baldwin's Ind.St.1934, Acts 1905, c. 129, § 107, as amended by Acts 1921, c. 131. The complaint further shows that the various provisions of said section was fully complied with; that the declaratory resolution was confirmed on September 16, 1929 that the contract for construction was awarded to appellant J. N. Morgan & Son on November 6, 1929; that the improvement was completed according to contract by said Morgan & Son, and the work accepted, and on June 30, 1930, the final assessment roll No. 8316 was adopted and approved; that the entire cost of said improvement was assessed against the abutting property owners except street and alley intersections, all in accordance with the provisions of said general statute, section 10440 et seq., section 11660, et seq., supra, and appellees' property was assessed at $620.55 as special benefits accruing from said street improvement. Appellees were notified of the various steps in the progress of said work, all as provided by said statute, but made no objections whatever to said proceedings. After the work was completed and the final assessment roll was adopted, appellees instituted this action to enjoin the collection of said assessment on the theory that the proceeding herein was governed by chapter 25 of the Acts of 1923 as amended by chapter 74 of the Acts of 1929, and not under the general law of 1905 as amended, and therefore said assessment was void. The complaint clearly states appellees' position in the following excerpts from their complaint as follows:

'The plaintiffs further allege that under the law the cost of re-surfacing, widening or adding to the roadway of any street which has been heretofore permanently improved with any one of the kinds of modern city pavements as provided in said Resolution No. 14406 of the Board of Public Works and as provided in the contract made and entered into by and between the Board of Public Works of the City of Indianapolis and the defendant J. N. Morgan & Son, on November 6, 1929 is apportioned three-fourths to the City of Indianapolis and one-fourth to the abutting real estate liable therefor.

'Plaintiffs further allege that in violation of the law governing contracts for the resurfacing or widening of streets which have been permanently improved the Board of Public Works did not assess any of the cost whatever to the City of Indianapolis, but assumed to assess the entire cost of said improvement under said resolution and contract to the abutting real estate. That the purported assessment against the plaintiffs' lot hereinbefore described was for at least four times the amount that could lawfully be assessed against the same.

'The plaintiffs further allege that the assessment made against said lot 14 of the Plaintiffs as hereinbefore alleged is invalid and void and made without any authority of law whatsoever.

'The plaintiffs further allege that the improvement covered and described in Resolution No. 14406 by the Board of Public Works and by said contract entered into by and between the Board of Public Works of the City of Indianapolis and said J. N. Morgan & Son on the 6th day of November, 1929 for the widening, re-surfacing and improvement of the roadway of North Meridian Street from the north property line of 54th Street to the south east property line of Westfield Boulevard, as hereinbefore alleged, is governed and controlled by the Act set out in chapter 25 of the Acts of the General Assembly of the State of Indiana of 1923 as amended by the Act set out in chapter 74 of the Acts of the General Assembly of the State of Indiana of 1929. That said acts govern and control said resolution, improvement and contract and the Board of Public Works, in widening and re-surfacing the street as defined in said Resolution No. 14406 and in said contract with the defendant J. N. Morgan & Son.

'The plaintiffs further allege that the Board of Public Works of the City of Indianapolis has no power or authority under the law to assess more than 25% of the cost of said improvement to the abutting real estate. That said Board of Public Works has no power or authority to refuse to assess 75% of the cost of said improvement under said resolution and contract to the City of Indianapolis. That the action of the Board of Public Works in refusing to assess any part of the cost of said improvement under said resolution and contract against the City of Indianapolis was illegal and void, and that the action of the Board of Public Works of the City of Indianapolis in attempting to assess the entire cost of said street improvements under said resolution and contract against the abutting real estate was illegal, invalid and void.

'The plaintiffs further allege that they are entitled to have the pretended assessment as hereinbefore alleged against their said lot cancelled and set aside and the collection thereof enjoined.'

The city and Morgan & Son, appellants herein, answered by special answers reciting and setting forth the various steps taken by the Board of Public Works in pursuance to section 10440 et seq., supra, and that appellees were notified both by publication of notices and by letter of said proceeding, and that appellees filed no remonstrance, made no objections to any of said proceeding whatever until the filing of this action; that by reason thereof appellees are estopped to deny the legality of said proceeding as to the validity of said assessments.

There is no question but that the pleadings herein and appellants' assignment of errors squarely present the question as to whether or not said improvement is controlled by the Act of 1905, c. 129, § 107 et seq., as amended (Burns' Ann.St.1926, § 10440 et seq.), or whether the assessments are controlled by chapter 25 of the Acts of 1923, as amended by chapter 74, Acts 1929, and, if controlled by the latter acts, are appellees estopped to question the validity of said assessments.

The Act of 1905, entitled 'An Act concerning municipal corporations' as amended prior to 1923, in express terms granted power and jurisdiction to a city acting by its Board of Public Works to improve and pave streets, including resurfacing and widening thereof, and assess all the cost of any such improvement against the abutting real estate, provided such cost did not exceed the special benefits accruing thereto on account of such improvement. Acts 1905, p. 219, 286-292, sections 107 to 111; Acts 1921, c. 131, pp. 324-332,§ 1, section 10440, Burns' R.St.1926, section 11660, Baldwins' Ind.St.1934. But appellees contend that the Acts of 1923 (Acts 1923, c. 25, p. 78) and 1929 (Acts 1929, c. 74, p. 243) were amendatory and supplemental to said Act of 1905, supra, and state:

'If there is a difference and conflict between two Acts of the General Assembly on the same subject the provisions of the last Act governs and controls and repeals by implication the conflicting provisions of the earlier Act. The provisions of the Act of 1905 entitled 'An Act Concerning Municipal Corporations' as amended prior to 1923 giving the board of public works the power and jurisdiction to assess 100% of the cost of widening and resurfacing the roadway of streets which had previously been improved with one of the kinds of modern pavements was changed, modified and repealed by the provisions of Act of 1923 (Acts 1923, page 78) as amended by Act of 1929 (Acts of 1929, page 243) which expressly provided by mandatory provisions that such cost of widening and resurfacing shall be assessed three-fourths, or 75%, against the city and one-fourth, or 25% against the abutting property. The provisions are in irreconcilable conflict and it is impossible for both to be the law at the same time; therefore, the provisions of said Acts of 1923 and 1929 were in full force in 1929 and 1930 and the board of public works had no right, power or jurisdiction to act under said Act of 1905 as it stood prior to said Acts of 1923 and 1929.'

Appellants contend that the Acts of 1923 as amended in 1929 (Acts 1923, c. 25, p. 78, and Acts 1929, c. 74, pp. 243, 245), supra, are cumulative and provide only an additional method of assessing the cost of the improvement. Appellants also contend that, even if the Acts of 1923 and 1929, supra, did in fact repeal by implication that part of the 1905 act in so far as they are in conflict, nevertheless the Board of Public Works did act under 'Color of Law,' and therefore appellees are estopped to question the validity of such proceeding in a collateral attack by a suit to enjoin the collection of the assessments.

The first question...