Edgerton v. The Huntington School Township

• Decision Date: 10 December 1890
• Docket Number: 14,601
• Parties: Edgerton v. The Huntington School Township
• Court: Indiana Supreme Court

26 N.E. 156

126 Ind. 261

Edgerton v. The Huntington School Township

No 14,601

Supreme Court of Indiana

December 10, 1890

From the Allen Circuit Court.

Judgment affirmed.

R. C Bell, S. R. Morris and J. K. Edgerton, for appellant.

J Morris, J. M. Barrett, L. P. Milligan and O. W. Whitelock for appellee.

OPINION

Coffey, J.

This was an action instituted by the appellee against the appellant and others, in the Allen Circuit Court, to enjoin the collection of an assessment made against the land described in the complaint, to pay for the construction of a public ditch. The land is congressional township land. In the construction of the ditch certain assessments were made against the land to aid in the same. Such assessments have been placed upon the tax duplicate of Allen county to be collected as other taxes.

The defendant John B. Nizer is the auditor of the county, John Dalman is the treasurer, and the appellant Edgerton is the owner and holder of the assessments.

The appellant is threatening to collect the assessments by advertisement and sale of land as delinquent taxes are collected. The only question in the case for decision relates to the liability of the congressional township land to assessments in aid of the construction of a public ditch.

Section 4305, R. S. 1881, found in the act prescribing the mode of constructing public ditches, provides that "It shall be the duty of the county surveyor, on being notified by any contractor that his job is completed, to inspect the same; and if he find that it is completed according to contract, he shall accept it, and give to the contractor a certificate of acceptance, stating that said job, share, or allotment is completed according to the specifications of said ditch. And if any share or allotment has been sold to a person not the owner of the land assessed therefor, he shall, in addition, state the amount due the contractor for constructing the same from the owner of the said land; which certificate shall be a lien upon the land assessed for such share or allotment, and shall be due and payable immediately by the owner of the land; and such certificate, if not paid on demand, shall draw interest until paid. * * And when the county surveyor accepts it, and issues his certificate of acceptance, he shall file with the county auditor a copy thereof; whereupon said auditor shall charge the amount mentioned in said certificate on the tax duplicate against the land assessed with such allotment, to be collected as other taxes are collected, together with six per cent. for the holder of the certificate after the same becomes delinquent; and when collected, it shall be paid to the person holding the certificate, on an order of the auditor."

When a statute creates a new right, and prescribes a mode of enforcing it, that mode must be pursued to the exclusion of all other remedies. This is a well known rule, and under it this court held in the case of Storms v. Stevens, 104 Ind. 46, 3 N.E. 401, that a ditch assessment could be collected in no other mode than that prescribed by the above statute.

If, therefore, the assessments against the land described in the complaint constitute a lien thereon, such lien is to be enforced by an advertisement and sale of the land for such sum as it will bring at public auction, as other lands are sold for delinquent taxes.

Can the Congressional township land be sold in that mode and for that purpose?

A proper solution of the question renders necessary an inquiry into the history of these lands.

An act of Congress, passed on the 19th day of April, 1816, to enable the people of Indiana Territory to form a...