Kizer v. Town of Winchester
| Decision Date | 11 April 1895 |
| Docket Number | 17,216 |
| Citation | 40 N.E. 265,141 Ind. 694 |
| Parties | Kizer v. The Town of Winchester |
| Court | Indiana Supreme Court |
Petition for Rehearing Overruled Sept. 18, 1895.
From the Randolph Circuit Court.
The judgment is affirmed at appellant's cost.
J. W Thompson, for appellant.
J Canada, for appellee.
Jordan J. Monks, J., took no part in the decision of this case.
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 seven of R. S. 1881. 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, R. S. 1881. The complaint contains sixteen 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 appraiser's 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 twelve (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, supra. Section 3400, supra, reads as follows: "The said lien created by this act on the said lots or parts of lots by the assessment shall be in favor of the said town in which such 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 proposed work.
Appellant controverts the validity of this section, but that its enactment was a valid and legitimate exercise of legislative power is well settled and can not be successfully called in question. Liberty Township, etc., v Brumback, 68 Ind. 93; Liberty Township, etc., v. Watkins, 72 Ind. 459; Sims v. Hines, 121...
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