Loesnitz v. Seelinger

• Decision Date: 13 March 1891
• Citation: 127 Ind. 422,26 N.E. 887
• Parties: Loesnitz v. Seelinger et al.
• Court: Indiana Supreme Court

127 Ind. 422

26 N.E. 887

Loesnitz

v.Seelinger et al.

Supreme Court of Indiana.

March 13, 1891.

On rehearing.

Affirming 25 N. E. Rep. 1037.

COFFEY, J.

A petition for a rehearing, supported by an earnest argument, has been filed in this case, in which it is insisted that this court erred in the opinion heretofore rendered in this: First, in holding that an action will not lie to enjoin the collection of an illegal assessment to aid in the construction of a free gravel-road until the legal assessments have been paid, where the legal and illegal taxes have been so commingled that they cannot be separated; second, in failing to decide that an appeal will not lie from a proceeding to establish and construct a free gravel-road. The contention of the appellant is that the viewers appointed by the board of commissioners to view the road in controversy, and estimate the expense of performing the work petitioned for, in estimating such expense took into consideration the construction of certain bridges which could not be constructed under the law providing for free turnpike roads, and that the viewers appointed to apportion the estimated costs of such improvement included, in the amount apportioned against the appellant's land, the cost of constructing such bridges; and that the cost of constructing the bridges is so blended and commingled with the legitimate expenses that it cannot be ascertained and separated. It is contended that, by reason of the facts above stated, the whole assessment is void. When the opinion was prepared in this case we did not think, nor do we think now, that the rules applicable to an ordinary tax had any application to cases of the class to which this belongs. Under the provisions of section 5092, Rev. St. 1881, the board of commissioners is required to appoint three disinterested freeholders of the county, whose duty it is to make a report to said board at its next regular session, containing, among other things, an estimate of the costs of the improvement sought to be made. By the provisions of section 5096, the board is further required to appoint three other disinterested freeholders of the county, whose duty it is, upon actual view, to apportion the estimated expenses of the improvement upon the real property embraced in the order for the improvement, according to the benefits derived therefrom, and to make report thereof to the county auditor. After the filing of such report, the auditor is required to notify...