Harmon v. Bolley, No. 23119.

• Docket Nº: No. 23119.
• Citation: 187 Ind. 511, 120 N.E. 33
• Case Date: June 28, 1918
• Court: Supreme Court of Indiana

187 Ind. 511
120 N.E. 33

HARMON et al.
v.
BOLLEY et al.

No. 23119.

Supreme Court of Indiana.

June 28, 1918.

Appeal from Circuit Court, Miami County; Nott N. Antrim, Special Judge.

Petition by Thomas E. Bolley and another in the circuit court for the cleaning and repairing of a public ditch to which Jacob J. Harmon and others filed objections, and from a judgment ordering that the ditch be repaired the objectors appeal. Reversed, with instructions to dismiss.

Robert J. Loveland, of Peru, Ind., for appellants. Albert H. Cole, of Peru, Ind., for appellees.

LAIRY, J.

Appellees filed their petition in the Miami circuit court asking for the cleaning and repair of a public ditch located in the counties of Miami and Wabash, and known as the “Squirrel Creek Ditch.” The proceeding was had under a statute of this state specially providing for proceedings for the repair of public ditches constructed by means of a steam shovel or floating dredge. Acts 1911, p. 681 (sections 6161o-6161p, Burns 1914). The petition was by the court referred to the county surveyor of Miami county, with directions to make an examination of the ditch proposed to be cleaned, and to report to the court as provided by the first section cited. The surveyor filed a written report in favor of the proposed clean-out, with complete specifications for repairs, whereupon notice by publication for two weeks was given by the clerk of the court, all as provided by the act cited.

On the return day fixed in the notice appellants appeared and filed verified objections to the jurisdiction of the court on the ground that the statute hereinbefore cited, which purports to confer jurisdiction on the court to order the repair of ditches in the manner therein provided, is void for the reason that its provisions with reference to the manner in which assessments are to be made conflict with certain provisions of the state and federal Constitutions. This objection and motion to dismiss the proceedings was overruled, which ruling is assigned as error, and presents the first question for consideration on appeal.

The statute under consideration provides for a hearing on the report after notice, on which the court shall determine whether such ditch shall be repaired, and, in case the finding is in favor of such report, the courts shall determine the order and manner in which said ditch shall be cleaned; and after such order has been made the clerk shall let the contract, after giving the notice provided, to the lowest responsible bidder, which contract shall be approved by the court. The costs of such repairs, including the per-diem of the county surveyor and printer's fees for the publication of all necessary notices, shall be paid by the persons, corporations, corporate roads, and railroads who are the owners of lands or rights of way originally assessed for the cost of construction of said ditch, in proportion to their original assessments as levied and made for the construction of said ditch. It is made the duty of the clerk of the court in which such proceeding

[120 N.E. 34]

is had to make a computation of the several assessments to be made and levied for such repair work by distributing the total cost of construction and the other expenses incidental thereto as in this act provided, and to prepare a report of the same, giving the name of the landowner assessed as the same appears on the tax duplicate, a description of his lands, and the amount to be apportioned to said lands, whereupon such report shall be submitted to the court for approval. If the court finds the report to be correct, it shall approve the assessments as made and fix the time within which the same shall be paid. Under the provisions of the act, all assessments paid to the clerk within the time fixed by the court shall be turned over to the county treasurer for the purpose for which the same were intended, and it is made the further duty of the clerk to certify all assessments not paid within such time to the county auditor, to be placed on the tax duplicate, and collected with a penalty of 10 per cent., as other taxes are collected.

Appellants' position is that the provisions of the act with reference to the allotment of the costs and expenses of the repairs is in conflict with the provisions of the Fourteenth Amendment to the federal Constitution, and also of section 21, art. 1, of the Constitution of Indiana. The section of the state Constitution relied on provides that no man's property shall be taken without just compensation, and the Fourteenth Amendment of the federal Constitution provides that no state shall deprive any person of life, liberty, or property without due process of law. It is the theory of appellants that the statute under which the proceedings were had provides for the apportionment and assessment of the costs and expenses of the repair to the several tracts and parcels of land affected in an arbitrary manner, without regard to the real or actual benefits which will accrue to each parcel of land by virtue of the proposed improvement, and that no provision is made by the statute whereby appellants are entitled to a notice or hearing by which the actual benefits to their lands may be determined by any tribunal. If the statute is followed, it is apparent that an assessment will be placed against the lands of appellants which will bear the same ratio to the total costs and expenses of the proposed repairs as the original assessments against said lands bore to the total assessments made for the construction of the ditch originally, and that no provision is made whereby they can challenge the amount of the assessment so made as being in excess of the actual benefits accruing to their lands on account of such repair.

By their verified motion to dismiss the proceeding for want of jurisdiction, appellants stated that their several tracts of land would not be benefited to any extent by the proposed clean-out, thus showing that any assessment apportioned against such lands would be in excess of the actual benefits accruing thereto.

[1][2][3] The question here presented involves a consideration of the power vested in the Legislature of the state to authorize the imposition of special assessments to pay the cost of local improvements of a public nature on property affected thereby, in connection with the limitations placed on such power by the constitutional provisions to which we have referred. That such power exists subject to such limitations is settled beyond controversy. Bemis v. Guirl Drainage Co. (1914) 182 Ind. 36, 105 N. E. 496;Anderson v. Kerns Drainage Co. (1860) 14 Ind. 199, 77 Am. Dec. 63. The difficulty arises in determining the application and effect of the two constitutional provisions under consideration. Do both of such provisions apply to the power of imposing such special assessments? If not, does one of them apply, and, if so, which one? The authorities hold with practical unanimity that the provision of the Fourteenth Amendment to the federal Constitution forbidding the taking of the private property of a citizen by a state without due process of law applies as a restriction on the power to levy and collect such special assessments; but there is hopeless confusion in the authorities as to the applicability of the provisions of state Constitutions similar to ours, forbidding the taking of private property for a public use without just compensation. By a number of decisions of this court it is held that the inhibition against the taking of private property for a public use without just compensation, as found in section 21, art. 1, of our Constitution, applies only to the taking of property under the power of eminent domain, whereby some specific property is taken from the owner and devoted to a public use. Hanly v. Sims (1910) 175 Ind. 345, 353, 93 N. E. 228, 94 N. E. 401;State v. Richcreek (1906) 167 Ind. 217, 223, 77 N. E. 1085, 5 L. R. A. (N. S.) 874, 119 Am. St. Rep. 491, 10 Ann. Cas. 899;Board v. State ex rel. (1896) 147 Ind. 476, 492, 40 N. E. 908;City of Aurora v. West (1857) 9 Ind. 74;Chicago, etc., R. Co. v. Elmhurst (1897) 165 Ill. 148, 154, 46 N. E. 437;Roberts v. Smith (1897) 115 Mich. 5, 8, 72 N. W. 1091;Heman v. Schulte (1901) 166 Mo. 409, 419, 66 S. W. 163. In other cases decided by this court, however, this constitutional provision has been invoked and applied as a limitation on the power to make such special assessments where the assessment imposed exceeded the actual special benefits. Parke County Co. v. Campbell (1894) 140 Ind. 28, 35, 39 N. E. 149, 558;Campbell v. Dwiggins (1882) 83 Ind. 473, 480;Trimble v. McGee (1887) 112 Ind. 307, 310, 14 N. E. 83.

In such cases the two constitutional provisions under consideration have frequently been referred to indiscriminately, the court

[120 N.E. 35]

saying that the enforcement of such assessment as to any excess above the actual benefits to the property affected would constitute the taking of property for a public use without just compensation and without due process of law. The confusion has arisen on account of the failure by the courts, in some cases, to observe any distinction in making the application of the two constitutional provisions under consideration. This distinction may be important in case of conflict between the decisions of the state courts and the federal courts. In determining the meaning and application of provisions of a state Constitution, the Supreme Court of the state has the last word and the federal courts, including the Supreme Court of the United States, will follow the decisions of a state on such questions. Old Colony T. Co. v. Omaha (1912) 230 U. S. 100, 116, 33 Sup. Ct. 967, 57 L. Ed. 1410;Missouri, etc., R. Co. v. Cade (1913) 233 U. S. 642, 647, 34 Sup. Ct. 678, 58 L. Ed. 1135. On the other hand, the Supreme Court of the United States has the last word when the meaning or application of a provision of the federal Constitution is involved, and the courts of the several...