Crowell v. Jaqua
| Decision Date | 27 January 1888 |
| Docket Number | 13,949 |
| Citation | 15 N.E. 242,114 Ind. 246 |
| Parties | Crowell et al. v. Jaqua |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled March 31, 1888.
From the Jay Circuit Court.
The judgment is reversed, with costs, and cause remanded, with instructions to overrule the motion to quash the precept and for further proceedings.
S. W Haynes, W. E. Cox, J. W. Headington and J. J. M. La Follette for appellants.
D. T Taylor, R. H. Hartford, J. B. Jaqua and J. A. Jaqua, for appellee.
Justice G. Crowell and Jason Heston, contractors, doing business under the name and style of Crowell & Heston, and the appellants in this proceeding, on the 30th day of May, 1885, entered into a contract in writing to make certain improvements in Beech alley, one of the alleys of the city of Portland, in this State, in pursuance of an ordinance which had been adopted by the common council of that city on the 9th day of the same month. On the 14th day of the succeeding month of September, the city engineer reported to the common council that the said Crowell & Heston had completed the proposed improvements according to their contract, and submitted estimates for the work which had been performed by them, against the owners of property bordering on the alley in question. The report of the engineer was accepted, and the estimates submitted were ordered to stand as assessments against the lots therein described. One of the lots included in these estimates, and against which a proportionate amount of the total cost of the improvements was assessed, was described as lot twelve (12) in block twenty (20) on the original plat of said city, and owned by James B. Jaqua, the appellee in this appeal. On the 5th day of March, 1887, Crowell & Heston filed their affidavit with the clerk of the city, alleging, among other things, that the assessment made against said lot twelve (12), as above stated, remained wholly unpaid. This affidavit was by the clerk reported to the common council, which, at its next meeting, held on the 7th day of the month last named, ordered that a precept be issued for the collection of such assessment in accordance with the provisions of section 3165, R. S. 1881, and a precept was accordingly issued.
Jaqua thereupon appealed to the circuit court, where, upon his motion, the precept was quashed, and the order directing its issuance was disapproved.
The motion to quash the precept was made, as well as sustained, upon the alleged ground that there had been no law authorizing the issuing of a precept, in a case like this, since the 13th day of April, 1885, the day on which the act of that year concerning the improvement of streets and alleys in certain cases took effect. Acts of 1885, p. 207.
In support of the action taken by the circuit court, it is claimed that sections 3163 and 3165, R. S. 1881, were impliedly repealed and entirely superseded by the act of 1885 referred to; and that, in consequence, the supposed lien which resulted from the estimates of the city engineer can only be enforced by proceedings in the circuit court similar to those which are usually resorted to in the foreclosure of a mechanic's or material-man's lien on real estate.
It is true, as insisted, that repeals by implication are not favored in the construction of statutes. This is well illustrated by the recent case of City of Evansville v. Summers, 108 Ind. 189, 9 N.E....
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