Kyle v. Malin

• Decision Date: 24 November 1856
• Citation: 8 Ind. 32
• Parties: Kyle v. Malin
• Court: Indiana Supreme Court

8 Ind. 32

Kyle v. Malin

Supreme Court of Indiana

November 24, 1856

From the Switzerland Court of Common Pleas.

The judgment is affirmed with costs.

J Sullivan, for appellant.

S Carter, for appellee. ^[1].

OPINION

Stuart J.

Complaint by Malin against Kyle, treasurer and collector of the town of Vevay, praying an injunction restraining him from the collection of an assessment for the grading, etc., of Washington street. On the hearing, the injunction was made perpetual. Kyle appeals.

It appears that in April, 1853, some of the property holders on Washington street, Vevay, petitioned the trustees to have that street graded and McAdamized. On petition, such action was had that the trustees ordered the improvement to be made, and let the work to one Kincaid, who entered upon it accordingly. In October, 1853, a supplemental petition was filed, reciting a mistake in the former petition, as to the recorded plat of Vevay, and asking further action by way of confirming what had been done. On this second petition, the trustees passed an order of confirmation, and that Kincaid proceed to complete the work. In the view we take of the case, it is not necessary to pass upon the validity of the second petition, further than it falls in incidentally.

The property of Malin, fronting on Washington street, was assessed about 42 dollars for the improvement, and Kyle had proceeded to levy on Malin's personal property to make the money. To enjoin the sale this suit is brought.

The ground of complaint is, that the trustees of Vevay have not proceeded in the premises agreeably to their charter; and that, having transcended the authority given by the charter, their acts are void.

By the act approved January 20th, 1846, the several acts relating to the town of Vevay were amended and reduced to one act. Local Laws, 1846, p. 337. The seventeenth section provides, that whenever the owner of lots on any street shall be desirous of making any improvements by grading, graveling, or paving the street, sidewalk, etc., two-thirds of the owners of real estate on such street, and representing two-thirds of the whole number of feet on each side of such street, shall petition for the contemplated improvement; and it shall be the duty of the corporation to cause the same to be done agreeably to the wish of the petitioners. The residue of the section provides for assessing and collecting the expenses of the improvement on the property affected thereby.

By a subsequent act, approved January, 1849, the seventeenth section above referred to was so amended as to authorize the corporation to cause the improvements in that section contemplated to be made, upon the petition of a majority of the owners of real estate on the street to be improved, instead of two-thirds. Local Laws, 1849, p. 337.

It appears from the pleadings, and is conceded in argument, that on the second petition there was a majority of the property owners on Washington street, representing a majority of the whole number of feet, taking both sides of the street together, but not representing two-thirds, or even a majority of the whole number of feet on each side of the street.

The question is thus narrowed down to the single point, how far does the amendment of the seventeenth section in 1849, extend? Does it change the two-third rule both as to the number of petitioners and the number of feet to a majority of each collectively, or does it leave the two-third rule as to the number of feet on each side of the street unimpaired? Clearly the latter. The seventeenth section required the petition to be signed by two-thirds of those owning property on the street to be improved. The amendment of 1849 went directly to the number of petitioners, but not to the number of feet. It provided that the petition of a majority of the property owners should be sufficient to effect what it required two-thirds of them to do before. But the amendment was silent as to the number of feet. Hence, that provision was not affected by the amendment; nor was it affected by the subsequent repealing section. Local Laws, 1849, p. 337, s. 2. For the repeal is only of so much of the seventeenth section as requires petitions therein contemplated to be signed by two-thirds of the owners.

The law as amended, then, stands thus: "A majority of the property holders representing two-thirds of the number of feet on each side of the street, may petition," etc.

Something is said in argument about the rule of construction; and the twenty-third section of the act of 1846, incorporating Vevay is relied upon. That section is, that the act shall be deemed a public act, and shall be favorably construed for all beneficial purposes. But whether that could be regarded as a favorable construction for any beneficial...