City of Martinsville v. Washington Civil Tp.

• Decision Date: 21 June 1910
• Docket Number: No. 7,696.,7,696.
• Citation: 92 N.E. 191,46 Ind.App. 200
• Parties: CITY OF MARTINSVILLE v. WASHINGTON CIVIL TP., MORGAN COUNTY.
• Court: Indiana Appellate Court

46 Ind.App. 200

92 N.E. 191

CITY OF MARTINSVILLE

v.WASHINGTON CIVIL TP., MORGAN COUNTY.

No. 7,696.

Appellate Court of Indiana, Division No. 2.

June 21, 1910.

Appeal from Circuit Court, Morgan County; J. W. Williams, Judge.

Action by the Washington Civil Township of Morgan County against the City of Martinsville. Judgment for plaintiff, and defendant appeals. Case transferred from the Supreme Court. Affirmed.John E. Sedwick, for appellant. Renner, McNutt & Bain, for appellee.

COMSTOCK, C. J.

Appellee brought this action against the appellant, the city of Martinsville, to recover a certain sum of money which it is alleged the trustee of Washington township was required to expend in cleaning out the portion of a public ditch which had been allotted to said city for cleaning as provided by law and which portion said city refused to clean.

The complaint in substance alleges that under the general drainage law of 1907 (Acts 1907, pp. 508, 600), and especially the sections thereof providing for the cleaning and repair of drains, upon the request of the township trustee, the county surveyor proceeded under said statute to allot said ditch for cleaning; that a portion thereof (all the small part within the city limits, and a part thereof outside), was allotted to the city for cleaning, but the city failed and refused to clean the part so allotted outside the city and that the trustee proceeded as provided by statute to have said portion cleaned. There is a prayer for judgment for the amount so expended with attorney's fees. Appellant's demurrer for want of facts was overruled to said complaint, and, refusing to plead further, judgment was rendered in favor of appellee. The controlling question presented by the assignment of error is the sufficiency of the complaint.

Section 9 of the general drainage act of 1907 (Acts 1907, p. 526; section 6150, Burns' Ann. St. 1908) provides that any benefit assessed to any highway shall be assessed against the proper township, and shall be paid by the trustee out of the township fund belonging to such township; that assessments on account of improvements to streets and alleys in incorporated towns or cities shall be against such towns or cities.

Section 10 (section 6152, Burns' Ann. St. 1908) of said act provides that all ditches or drains that may have been, or may hereafter be, constructed under and by virtue of any law of this state shall, after the allotment shall be made by the county surveyor, be under the charge and supervision of the trustee of the township in which the same are a part thereof whose duty it shall be to see that the same are cleaned out and kept open and in proper repair, free from obstruction, so as to answer their purpose.

Section 11 (section 6153, Burns' Ann. St. 1908) makes it the duty of the county surveyor in each county in which any ditch or drain is located, when ordered by the trustee of the township in which some part of such ditch is located, to examine such ditch within his respective county, except dredged ditches, and to fix and determine the portion thereof that the owner of each tract of land and each corporation, county, or township assessed for the construction thereof should biennially clean out and keep in repair.

Section 12 (section 6154, Burns' Ann. St. 1908) provides that such surveyor shall cause to be posted up, for not less than 10 days, in 5 public places in the township where lands are allotted a portion of said work, written or printed notices of the place where and the time when he will hear all objections that may be made to such allotments, etc.

Section 14 (section 6156, Burns' Ann. St. 1908) provides that any person aggrieved may appeal from such order to the circuit or superior court of the county.

Section 2 (section 6141, Burns' Ann. St. 1908), of the general drainage act of 1907, reads in part as follows: “It (the petition) shall also state that in the opinion of the petitioners that the public health will be improved, or that one or more public highways of the county, or street or streets of, or within the corporate limits of a city or town, will be benefited by the proposed drainage. ***” Acts 1907, p. 509.

Section 3 of said act reads in part as follows: “Whenever the petitioner, or petitioners, shall file their petition in the clerk's office of the circuit or superior court, he or they shall fix or note thereon the day set for the docketing thereof and shall give the owner or occupant of each tract of land described in said petition, who is a resident of the county or counties in which said land is situated, and to the trustee of the township, mayor of the city, president of the board of trustees of every town or city and the agent of any railroad company or corporation or company, public or private to be affected by the proposed work notices thereof. ***” Acts 1907, p. 510.

At the same session the Legislature passed an act for cleaning and repairing of drains (Acts 1907, p. 600), and provided that it should not repeal any law enacted during the same session, but should be supplemental thereto. Acts 1907, p. 613.

Section 2 of the last-named act provides: “*** It shall be the duty of every person or corporation to whom any allotment has been made, upon receipt of such notice (as provided) from the trustee (or other person for him), to perform his allotment within the time fixed within said notice, and on failure to do so the trustee shall proceed at once to have the same completed, and shall certify the cost thereof, to the auditor of the county, who shall place the same on the tax duplicate as other taxes against such person or corporation, and to be collected as other taxes are collected, and when collected, the same to be paid over to such trustee, or such trustee may recover such expense before any justice of the peace of the township where the owner resides, or through or into which such railroad or road runs; or he may bring suit in the circuit or superior court of the county to collect such expense and fees, and enforce and foreclose the lien on such land, or upon such road or railroad, and in all suits brought by the trustee under the provisions of this act such trustee shall also recover reasonable attorney's fees,” etc. Whether or not property within a city, benefited by a drain which passes through or has its origin in said city and extends into territory beyond the city limits, should be taxed in common with other property outside the corporate limits is a question for the Legislature, and not for the courts. The various sections of the statute in question contemplate the construction, repair, and keeping clean of such ditches for the common welfare of the people-of residents of towns and citizens of townships. The Legislature has named a common officer to protect and care for such drains, and has provided a method by which it shall be done. It is not claimed in the suit at bar that there has been any irregularity in the construction of the drain or method employed to keep it in repair and clean and unobstructed, nor that the officer in charge of the work under said act has omitted to do anything required of him. The only question is as to whether there is any authority at all under the law to make the assessment which is here involved.

It has been said that there is no authority given to tax the people of a township outside the city for support of interests within and relating alone to the city in its distinct corporate capacity. It might in like manner be said that those interests which are peculiar to citizens and property outside said city must find support alone from those whose interests they are, namely, those of townships as distinguished from those of cities. And it may be said with equal force that there is no authority given to tax people outside of a city for the support of interests which are peculiar to citizens and property within such city. But, it must be admitted, we think, that...