Kizer v. Town of Winchester
| Decision Date | 11 April 1895 |
| Citation | 40 N.E. 265,141 Ind. 694 |
| Parties | KIZER v. TOWN OF WINCHESTER. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Randolph county; L. J. Monks, Judge.
Action by the town of Winchester against Thomas W. Kizer to enforce a lien against real estate of defendant, created by a special assessment. From a judgment for plaintiff, defendant appeals. Affirmed.J. W. Thompson, for appellant. Jesse Canaday, for appellee.
Appellee, an incorporated town, under the laws of this state, constructed a sewer in pursuance of an act of the legislature of 1867; the same being sections 3392, 3393, and subsequent ones, of article 7, Rev. St. 1881 (sections 4429, 4430, art. 7, Rev. St. 1894). This action to enforce the lien created by the assessment of benefits for the construction of the above sewer, against the real estate of appellant, was commenced by appellee under section 3400, Rev. St. 1881 (section 4437, Rev. St. 1894). The complaint contains 16 paragraphs, each alleging facts fully showing that all the required steps necessary to create the lien were taken by the municipal authorities in accordance with the statute in question. A copy of the report or schedule of the appraisers who assessed the benefits was filed with, and made a part of, the complaint. Appellant, by a demurrer, called in question the sufficiency of each of the paragraphs; and the only error assigned, necessary for the consideration of this court, is based upon the overruling of the demurrer. Appellant's grounds are: First, that there are no allegations in the complaint which show that all the lots that were benefited by the construction of the sewer were assessed, and that there is nothing attached to or made a part of the appraisers' report which shows that they did assess all the lots that were benefited by the proposed improvement; second, that the statute under which the sewer was constructed is unconstitutional, being in conflict with section 12 of the bill of rights of the constitution of this state, which provides, in effect, that every person shall have a remedy by due course of law, and likewise antagonistic to section 1 of article 14 of the federal constitution, wherein it is provided that no state shall deprive any person of property without due process of law. We will consider the questions raised and discussed by the learned counsel for appellant in their order.
In each paragraph of the complaint it is averred that the appraisers were appointed in accordance with section 3393, Rev. St. 1881 (section 4430, Rev. St. 1894). Section 3400, Rev. St. 1881 (section 4437, Rev. St. 1894), reads as follows: “The same lien created by this act on the lots or parts of lots by the assessment shall be in favor of the said town, in which said lots are situated, and the same may be enforced by an action in the name of the town in any court of competent jurisdiction; and in such action, the presumption of law shall be that all the provisions of this act have been complied with; and the only defense that the defendant shall be allowed to set up, in said action, shall be that he has paid the amount with which said lots or parts of lots are charged, and that said lots or parts of lots, are not benefited to the amount assessed against the same.” Under this section, appellant in this action was restricted, and only permitted to raise the objections or make the defenses therein stated; and the court is required to presume that there has been a compliance with the provisions of the law by those charged with the administration thereof. Hence it follows that it must be presumed that the appraisers discharged the duties enjoined upon them by the statute, and assessed benefits to each and all lots or parts of lots benefited by the...
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