Haynes Auto. Co. v. City of Kokomo

• Decision Date: 04 January 1917
• Docket Number: No. 22708.,22708.
• Parties: HAYNES AUTOMOBILE CO. et al. v. CITY OF KOKOMO.
• Court: Indiana Supreme Court

186 Ind. 9

114 N.E. 758

HAYNES AUTOMOBILE CO. et al.

v.CITY OF KOKOMO.

No. 22708.

Supreme Court of Indiana.

Jan. 4, 1917.

Appeal from Circuit Court, Howard County; Wm. C. Purdum, Judge.

Proceeding by the City of Kokomo, under the provisions of Burns' Ann. St. 1914, § 8729, to improve an open drain, wherein the Haynes Automobile Company, the Union Traction Company of Indiana, and another each filed written appeal to the circuit court and moved that the appeals be submitted to and determined by the court, and that they, as remonstrators, be permitted to introduce evidence in support of their appeals and the Union Traction Company of Indiana moved to strike from the assessment roll and declare void the assessments against its right of way within the city of Kokomo under franchise given it by the city. The court overruled the motions, and submitted the appeals to three reviewers to view and assess the property, who returned a report that the former assessments were not excessive, whereupon appellants moved the court to strike out the report because the court was not authorized to submit the appeals to the reviewers. From judgment overruling the motions and new motions that appellants' appeals be submitted to the court, and that they be permitted to introduce evidence in support thereof, the Haynes Automobile Company, the Union Traction Company of Indiana, and another appeal. Judgment reversed, with instructions.J. A. Van Osdol, of Anderson, and Blacklidge, Wolf & Barnes, of Kokomo, for appellants. Joseph C. Herron, of Kokomo, for appellee.

ERWIN, J.

This proceeding was to improve an open drain, known as “Petes run” flowing through the southern portion of the city of Kokomo, Ind., by constructing a sewer, extending beyond the city corporation limits, under the provisions of section 8729, Burns 1914. Within 15 days after the filing of the assessment roll the three appellants, Haynes Automobile Company, Union Traction Company, of Indiana, and Traction Land Company, each filed their written appeal to the Howard circuit court, and moved that the appeals be submitted to and determined by the court, and that they, as remonstrators, be permitted to introduce evidence in support of their appeals. The Union Traction Company of Indiana moved to strike from the assessment roll and to declare void the assessment against its right of way within the city of Kokomo under franchise given it by the city. The court overruled the above motions, and submitted the appeals to three reviewers to view and assess the property. The reviewers returned a report that the former assessments were not excessive, whereupon the appellants moved the court to strike out the report of the reviewers, for the reason that the court was not authorized to submit its appeals to the reviewers. These motions were overruled. Appellants again moved that their appeals be submitted to the court, and that they be permitted to introduce evidence in support thereof, which motions were likewise overruled.

Appellants assign as error the sustaining of appellee's motion to submit the appeals and remonstrances of appellants to three disinterested reviewers, and in overruling their various motions to submit the appeals to the court and their motions to strike out the report of the reviewers. Appellant Union Traction Company also assigns the additional error of overruling its motion to strike out of the assessment roll the assessment against its franchise right of way within the city.

The first four errors assigned present for consideration the question: Did the court err in referring the appeals to reviewers instead of considering the same and hearing evidence thereon? Section 122 of the act of 1905 (Acts 1905, p. 310) and section 8729, Burns 1914 (Acts 1909, p. 238), both provide for the appointment by the circuit court of a board of assessors to view the line of the drain, the lands to be benefited and those damaged, and make an assessment roll, showing the benefits to all the lands and property, and a roll showing the damages to the lands injuriously affected, if any. Section 8729 further provides:

“That appeals from such assessments may be made to the circuit court within fifteen days from the time such assessment rolls are filed, to be conducted as other appeals.”

It was the evident intention of the Legislature that the report of the assessors should be fied in the circuit court, and that the circuit court should have power to review the assessment by the trial of the issues joined on the assessments. And “to be conducted as other appeals” meant that the court should try the issue as to the assessments as other appeals are tried, which would be to hear evidence independent of the report of the assessors. This is further evident from the provision in said section:

“That the judge shall have the power to call the said assessors together, who shall be authorized and empowered to make any such additions or corrections as may be necessary from time to time.”

This would give effect to all portions of the statute under consideration, and carries out the evident intent of the Legislature. This action makes no provision for the appointment of reviewers, but does provide that the assessors shall be subject at all times to the direction of the court.

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