City of New Albany v. Lemon

• Decision Date: 05 November 1925
• Docket Number: No. 24275.,24275.
• Citation: 149 N.E. 350,198 Ind. 127
• Court: Indiana Supreme Court
• Parties: CITY OF NEW ALBANY v. LEMON et al.

198 Ind. 127

149 N.E. 350

CITY OF NEW ALBANY

v.LEMON et al.^*

No. 24275.

Supreme Court of Indiana.

Nov. 5, 1925.

Appeal from Circuit Court, Floyd County; James W. Fortune, Judge.

Suit by the City of New Albany against William C. Lemon and others. Judgment for defendants on demurrer, and plaintiff appeals. Reversed, with directions to overrule demurrer.

Jewett & Bulleit, of New Albany, for appellant.

Stotsenburg, Weathers & Minton, of New Albany, for appellees.

EWBANK, J.

Appellant sued to vacate and enjoin the enforcement of a judgment which purported to reduce the amount of certain assessments of benefits for the cost of improving Spring street, in the city of New Albany, as made and confirmed by a committee of the common council, acting as a board of public works, and also purported to give the contractor, who built the street, a judgment against the appellant city for the amount in which the assessments were so reduced. The contractor and the owners of certain lots assessed for the construction of the street, whose assessments the court ordered to be reduced, were named as defendants. Over an objection and exception by appellant, parts of the complaint were struck out on motion of appellees, who then demurred to the complaint for the alleged reason that it did not state facts sufficient to constitute a cause of action. The demurrers were sustained, and, upon appellant's refusal to plead over or amend, judgment was rendered that it recover nothing, whereupon it perfected an appeal.

As modified by the order striking out certain words and sentences, the complaint alleged, in substance, that plaintiff (appellant) is a city of the third class, and has no board of public works, but has and at all times had created a committee of the common council, and authorized it to perform the duties of such a board; that on June 24, 1920, said committee, so acting as the board of public works, adopted a declaratory resolution for the improvement of Spring street in said city, from Silver street to Beharrel avenue, and adopted and placed on file details, drawings, plans, and specifications, published a notice, had a public hearing, confirmed said resolution, received bids, let a contract for such improvements, caused the work to be done, and duly accepted it as completed, all as provided by law, reciting specifically the acts that were so done; that said committee thereupon made and adopted a final estimate of the total cost, and made an assessment roll, assessing against each abutting lot its pro rata share of the cost (except for street and alley intersections) in proportion to frontage, one half against the lots abutting upon the north side of Spring street, and the other half against those on the south side; that the several assessments thus made against lands of the respective defendants (appellees) were in amounts as stated; that, after giving notice thereof as required by law, said committee, acting as a board of public works, met for the purpose of making a final assessment for the cost of said improvement against the property thereby benefited, when each of the defendants appeared and filed with the committee a remonstrance in writing against the assessment of benefits against his or her respective property in the amount stated in the preliminary assessment roll; that all of said remonstrances were overruled, and thereupon said committee, so acting, on June 23, 1921, made, adopted, and filed with the finance department of said city a final assessment roll for the improvement of said street, by which the several properties of the different defendants were assessed at amounts as stated, in a total sum exceeding $10,000; that these assessments covered the cost of improving the street opposite the properties assessed, but did not include any part of the cost of paving street intersections; that the work of the improvement had been honestly and thoroughly done by the contractor and all the acts, proceedings, and doings of said committee of the common council were in strict conformity to law, and the amount of each assessment was duly certified to the county treasurer for collection or the receipt of waivers of objections, and promises to pay by installments; that none of these defendants took an appeal therefrom to the circuit court of Floyd county, in conformity with the provisions of chapter 140, Acts 1919, p. 625 (section 8716, Burns' Supp. 1921), “by filing his verified petition with such court of said county and giving bond conditioned to pay the costs of such appeal, should the appeal be determined against him *** within ten (10) days after the final order of the board or council approving said assessments,” but that all of them, jointly, attempted to take an appeal to said court under the provisions of chapter 143, Acts 1919, p. 635 (sections 8699a-8699g, Burns' Supp. 1921), and for that purpose filed in the said Floyd circuit court an unverified complaint, on the 7th day of July, 1921 (being 14 days after the final order was made), but did not file any bond until January 3, 1922 (being more than six months after it was made); that, upon the filing of such unverified complaint, the clerk issued a summons for this plaintiff, which was served upon it, and that plaintiff, in obedience thereto, appeared before the judge of the Floyd circuit court and moved to dismiss the proceeding for lack of jurisdiction; that thereupon the judge entertained the motion and continued the cause until January 3, 1922; that on said date this plaintiff also demurred to the complaint for lack of jurisdiction of the court, but the court at that time granted these defendants leave to verify their complaint and to file a bond for costs, to which the plaintiff herein objected and excepted; that thereupon one of these defendants, William C. Lemon, verified the complaint and filed a cost bond as and for himself, but none of the others did either; that said judge thereupon heard evidence and found and adjudged that the assessments of benefits against the several properties of these respective defendants should be reduced, as stated, to a total of less than $7,000, and “that the defendant city of New Albany shall be liable and shall pay to David C. Collins, the contractor who made said improvement, the amount of the several deductions made herein on the assessments against the property of said several parties *** (setting them out) making a total sum of $3,257.01”; that such finding and judgment were thereupon entered in the order book of the Floyd circuit court as and for a valid judgment of said court, though the judge thereof had no jurisdiction because of the facts above stated; that, in proceedings by way of appeals from such assessments, the city is not given any right of appeal, trial by jury, change of venue, new trial, or any other rights ordinarily allowed the defendant in a civil action, and the city is without any other remedy than by an injunction to prevent the enforcement of said judgment; that enforcement of said judgment will be harmful to plaintiff for reasons as stated; and that David C. Collins is made a party in order that he may assert whatever rights he may have under the pretended judgment.

[1][2] The sufficiency of this complaint depends upon whether filing an unverified complaint 14 days after the final order was made approving the assessments, and causing summons to issue as in civil actions, gave the circuit court jurisdiction, under the provisions of chapter 143, Acts 1919, supra, or whether the case is controlled by chapter 140, supra, which requires a verified petition to be filed within 10 days, a bond for costs to be given, and a 5 days' “notice of the filing thereof, and that the same will be heard by such court at the end of said time,” to be given the city by the clerk. Both of the statutes referred to were approved by the Governor on March 14, 1919, and were filed in the office of the secretary of state on that day, and both contained emergency clauses and took effect immediately. The court may resort to the journals of the two legislative bodies, and read therein the history of these laws, from their first introduction to their final passage, as an aid in their interpretation with a view to ascertaining the legislative intent in passing them (Edger v. Board, 70 Ind. 331, 338;Arnett v. State, 168 Ind. 180, 189, 80 N. E. 153, 8 L. R. A. [N. S.] 1192; 2 Lewis' Sutherland Stat. Const. [2d Ed.] 470); and by consulting them we find that the journals of the House and Senate show that both bills were referred to the same committee (on cities and towns) in each branch of the Legislature, that each committee reported both bills favorably,...