City of New Albany v. Lemon
| Decision Date | 05 November 1925 |
| Docket Number | 24,275 |
| Parties | City of New Albany v. Lemon et al |
| Court | Indiana Supreme Court |
Rehearing Denied June 15, 1926, Reported at: 198 Ind. 127 at 137.
1. STATUTES.---Courts may resort to the journals of the House and Senate to ascertain legislative intent.---The courts may resort to the journals of the House and Senate as an aid in the interpretation of a law with the view of ascertaining the legislative intent in passing it. p. 133.
2. STATUTES.---Statutes in pari materia.---Statutes relative to the same subject-matter, passed at the same session of the Legislature, and taking effect at the same time, must be construed together as parts of one body of laws, and as together expressing the legislative will, if it be possible to reconcile them on any basis whereby both may be given effect. p. 133.
3 STATUTES.---When specific provisions of a limited act control provisions of a general act.---Where specific provisions of one act, having special reference to a limited and definite part of the subject-matter of a general act passed at the same time purporting to cover the entire subject, are inconsistent with provisions of such general act, the specific provisions of the act which covers only a part of such subject will control. p. 134.
4 STATUTES.---Statute amending Municipal Corporations Act controlled the procedure in appeals from assessments instead of later act of the same session.---Since the amendment to 111 of the Municipal Corporations Act of 1905 made in 1919 (Acts 1919 p. 625) applied only to appeals from assessments for municipal improvements and another act of the same session embraced all appeals from boards of public works and park commissioners, the former controlled within its sphere and an appeal from assessments for a street improvement could only be taken under its provisions (8716 Burns' Supp. 1921). p. 135.
5. MUNICIPAL CORPORATIONS.---Statutory requirements in taking, appeal from assessment roll must be complied with to confer jurisdiction on courts.---The right of appeal from an order of the board of public works approving an assessment roll for a public improvement is statutory, and no jurisdiction is conferred on the court to which an appeal is taken unless the requirements of the statute as to taking and perfecting appeals are complied with. p. 135.
6. APPEAL.---Filing of bond within time specified in statute authorizing appeal is jurisdictional, and acceptance of bond at later date confers no jurisdiction.---Where an appeal is authorized on the filing of a bond within a limited time and the doing of certain other acts, the filing of the bond within such time is jurisdictional, and the acceptance of a bond at a later date will not confer jurisdiction on the court to which an appeal is taken. p. 135.
7. APPEAL.---If appeal bond is not filed in time, court to which appeal was taken cannot authorize the filing of a bond at a subsequent date.---If an appeal bond is not filed within the time specified in the statute authorizing the appeal, nothing else that may be done toward perfecting the appeal will give the court to which the appeal is taken power to acquire jurisdiction by accepting a bond subsequently offered for filing. p. 135.
8. INJUNCTION.---Injunction lies to prevent the enforcement of a judgment rendered by court without jurisdiction where no appeal can be taken from such judgment.---Where a judgment was rendered by a court having no jurisdiction and the statute under which the court assumed to act provided that no appeal should lie from a judgment rendered in a proceeding thereunder, a suit to enjoin the enforcement of the judgment could be maintained by a judgment defendant. p. 136.
9. STATUTES.---Rule that where later statute re-enacts an earlier one which has been qualified or limited by an intermediate act, the latter is not repealed, is not applicable to two acts going into effect at same time.---The rule that where a later statute merely re-enacts the provisions of an earlier one, it does not repeal an intermediate act which has qualified or limited the earlier one, but such intermediate act will be deemed to remain in force and to qualify or modify the new act in the same manner as it did the first, was not applicable to the two acts of 1919 relative to taking appeals from boards of public works (Acts 1919 p. 625, 8716 Burns' Supp. 1921, Acts 1919 p. 635, 10344 Burns 1926), as both laws took effect at the same time. p. 137.
From Floyd Circuit Court; James W. Fortune, Special Judge.
Suit by the city of New Albany against William C. Lemon and others. From a judgment for defendants, the plaintiff appeals.
Reversed.
Charles R. Turner, Charles L. Jewett and Walter V. Bulleit, for appellant.
Evan B. Stotsenburg, John H. Weathers and Sherman Minton, for appellees.
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 ch. 140, Acts 1919 p. 625 (§ 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 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 ch. 143, Acts 1919 p. 635 (§§ 8699a-8699g Burns' Supp. 1921), and, for that purpose, filed in the said Floyd Circuit Court an unverified complaint, on July 7, 1921 (being fourteen 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...
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