Garvin v. Daussman
| Decision Date | 08 May 1888 |
| Docket Number | 13,232 |
| Citation | 16 N.E. 826,114 Ind. 429 |
| Parties | Garvin v. Daussman et al |
| Court | Indiana Supreme Court |
From the Vanderburgh Circuit Court.
The judgment is affirmed, with costs.
G. A Cunningham, for appellant.
Jacob Daussman and Henry Alexander, partners under the firm name of Jacob Daussman & Co., complained of Thomas E. Garvin, and alleged that they had been awarded the contract for the improvement of a certain street in the city of Evansville which improvement it is averred had been regularly ordered and the contract therefor duly let, by the common council of the city. The plaintiffs claimed that they had fully executed their contract and completed the improvement, and that the cost thereof had been duly estimated, apportioned and assessed as the law requires.
It is averred that the defendant is the owner of a certain tract of real estate abutting upon the improvement, and that his proportion of the cost thereof, according to the assessment made by the common council, amounted to $ 79.36, which sum remained unpaid, and for which a precept had been duly issued to the plaintiffs on the 20th day of November, 1885. The proceedings of the common council are exhibited with the complaint. Prayer for a judgment and for the foreclosure of the lien allowed by law.
Demurrer to the complaint was overruled, after which there was a trial upon an issue made by the general denial. There was a finding for the plaintiffs, and judgment according to the prayer of the complaint.
The city of Evansville derives its existence as a municipality from a special charter or law enacted by the Legislature in the year 1847. Section 58 of that law makes provision for the improvement and repair of streets. It is enacted therein, among other things, that the cost of street improvements may be assessed and charged upon all lots or parcels of land fronting on the part of the street improved. It gives authority to the common council to provide by general ordinance for collecting the cost and expenses of such improvements, and also for the sale of the lots against which the cost and expenses may be assessed. It empowers the common council to make provision for the collection of the cost of street improvements by suit, and for the enforcement of liens as other liens are enforced, and it also declares that no informality of any order of the common council directing the making of any such improvement or repairs, nor in the making of the assessment or apportionment of the costs and expenses of the same, shall afford the defendant a defence in any action for the collection of any such costs and expenses, or for the enforcement of the lien therefor, provided the improvement or repairs were made in substantial compliance with the provisions of the act and the ordinance as passed for carrying it into effect.
The appellant concedes that the common council, in pursuance of the authority thus conferred, duly enacted general ordinances regulating the manner of making street improvements in the city of Evansville, and providing for the collection of the cost and expenses of such improvements, and that the improvements in question were made pursuant to an ordinance duly adopted on the 2d day of May, 1881. The ordinance is not regularly set out in the record, but, as it appears in the appellant's brief, and according to the concession made by counsel, it provides that, when the council shall, in pursuance of the charter, order and require any improvements to be made on any of the streets of the city, an order shall be made, designating the improvements, and thereupon the clerk shall advertise for bids, and the work shall be let to the lowest responsible bidder, who shall comply with the requirements as to bond, etc.
Section 2 provides for the mode of apportioning the cost of the work.
Section 3 provides that the mayor and city surveyor shall, within seven days after the letting of the contract, report to the council the whole cost of the work, and the separate amount chargeable against each property-holder, and that the council shall thereupon pass an order assessing and charging each lot or parcel of real estate with its share or proportion of such expense.
Section 4 makes it the duty of the council, upon the completion of the work, to order a precept to be issued to the contractor against each parcel of real estate so assessed, which precept shall be signed by the mayor and attested by the clerk, and shall entitle the contractor to collect the same in his own name.
The subsequent sections of the ordinance authorize the contractor to collect the assessment by the enforcement of the lien thereof in the same manner mortgages are foreclosed.
It is insisted on the appellant's behalf that the assessment made against his property under the provisions of the foregoing ordinance was invalid, because neither the charter of the city of Evansville, nor the ordinance enacted thereunder, makes any provision for notice to the owners of property to be affected by street improvements, or for an appeal from the precept or assessments, as is usual in such cases. This premise being assumed, the conclusion is drawn that so much of the ordinance as authorizes the abutting property to be charged with the cost of the improvement is in contravention of that provision of the Federal Constitution which declares, in effect, that no State shall deprive any person of life, liberty or property "without due process of law."
The question presented is not whether the law and the ordinance regulating the improvement of streets have been followed; but, conceding that they have been, it is asserted that they are inadequate to create a charge against, or to impose a burden upon, property, according to "the law of the land."
It is, without doubt, essential to the validity of every law under which proceedings may be had for the taking of property, or to impose a burden upon it which may result in taking it, that the law make provision for giving some kind of notice at some stage in the proceeding, and that it afford the owner an opportunity to be heard concerning the legality of the assessment, before some tribunal or body authorized to correct errors, or give appropriate relief, before the property is taken or the charge made absolute.
As was well said in an analogous case: Stuart v. Palmer, 74 N.Y. 183. Fries v. Brier, 111 Ind. 65, 11 N.E. 958; Campbell v. Dwiggins, 83 Ind. 473; Whiteford Tp. v. Probate Judge, 53 Mich. 130, 18 N.W. 593; Thomas v. Gain, 35 Mich. 155; Brown v. City of Denver, 7 Colo. 305 (3 Am. & Eng. Corp. Cas. 630, 3 P. 455); City of Philadelphia v. Miller, 49 Pa. 440; Santa Clara v. Southern Pacific R. R. Co., 13 Am. & Eng. R. R. Cas. 182; Overing v. Foote, 65 N.Y. 263; Cooley Taxation, 265, 266.
Any proceeding, therefore, the result of which is to deprive the owner of his property, or to impose a burden upon or create a charge against it, and which is carried on under a law which makes no provision for notice, and affords the owner no opportunity to be heard concerning the correctness of the assessment, and whether the amount charged against him or his...
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