Martindale v. Town of Rochester
| Decision Date | 24 November 1908 |
| Docket Number | 21,120 |
| Citation | 86 N.E. 321,171 Ind. 250 |
| Parties | Martindale v. Town of Rochester et al |
| Court | Indiana Supreme Court |
From Fulton Circuit Court; Harry Bernetha, Judge.
Suit by Warren B. Martindale against the Town of Rochester and others. From a judgment for defendants, plaintiff appeals.
Affirmed.
Enoch Myers, for appellant.
James H. Bibler and Holman & Stephenson, for appellees.
After the substantial completion of an improvement of Main street in the town of Rochester, under § 8959 Burns 1908, Acts 1905, p. 219, § 265, appellant brought this suit to enjoin appellee from making, or attempting to make, or from collecting, any assessment against his real estate abutting on said street, where the same was improved, to pay the cost thereof.
Appellees' demurrer for "want of facts" to the complaint was sustained, and appellant refusing to plead further judgment was rendered against him on demurrer. The only error assigned is the sustaining of said demurrer to the complaint.
It is first claimed that appellee town was without jurisdiction to make said improvement or enter into any contract therefor because there was "no sufficient notice given of the declaratory resolution adopted November 16, 1905, and of the time when and the place where the board of trustees would hear objections to the necessity of said improvement."
Section 8959, supra, provides that "notice of the time and place of hearing such resolution shall be given by two weekly publications, in a newspaper of general circulation, published in such city or town; and if no such paper be published in such city or town," then by posting. This is the only notice required of such hearing, and as the allegations of the complaint do not show that such notice was not given, it must be presumed, as against this collateral attack, that the proper notice was given. Elliott, Roads and Sts. (2d ed.), § 608, p. 638; Jenkins v. Stetler (1889), 118 Ind. 275, 20 N.E. 788; City of Bloomington v. Phelps (1898), 149 Ind. 596, 599, 49 N.E. 581; Dyer v. Woods (1906), 166 Ind. 44, 53, 76 N.E. 624, and cases cited.
It is next insisted that the proceeding was without jurisdiction, and the contract for improvement void, because "said declaratory resolution was never confirmed, changed, modified, altered or rescinded by said board."
Section 8959, supra, further provides that "such common council or board of trustees shall meet at the time and place set forth in such notice and shall hear any and all persons who desire to be heard in person, or by attorney, whose property may be affected by the proposed improvement; and upon such hearing such resolution may be confirmed, modified, changed, altered or rescinded, but the kind of improvement to be made shall be determined and specified before the resolution is finally adopted."
It is alleged in the complaint: "That, after the hearing of said objections, said defendant town did not confirm, change, modify, alter or rescind said declaratory resolution by any order, resolution, ordinance or in any other manner, but, on the contrary, afterwards, to wit, on December 9, 1905, said defendant town, by its said board of trustees, by another resolution, adopted and entered of record, ordered the improvement of that part of Main street aforesaid by 'grading and paving with vitrified shale paving block,' and setting marginal curbs and sewer inlets, the width of paving from the south line of Pearl street south to the first alley to be fifty feet between curbs, and thence to the south line of lot four in Jonas Goss's addition to said town, said paving to be forty-two feet between curbs."
The time for hearing objections to said declaratory resolution, as stated in the notice, was December 8, at 7 o'clock p. m. The resolution adopted December 9, 1905, was concerning the same improvement as that mentioned in the declaratory resolution of November 16, 1905, and it was adopted the next day after the hearing of objections to the declaratory resolution, and as a part of the proceeding for the improvement of said street, and was in form a final, and not a declaratory resolution. We must presume, therefore, that it was adopted as the final resolution in the proceedings for the improvement of said Main street, the allegations of the complaint not being sufficient to overcome this presumption. Elliott, Roads and Sts. (2d ed.), § 608, p. 638; City of Bloomington v. Phelps, supra; Jenkins v. Stetler, supra; Dyer v. Woods, supra, and cases cited.
It is next insisted that said proceeding was without jurisdiction and void, because "no notice was given of the adoption of the resolution on December 9, 1905, and no notice was given of the time and place, when and where, the owners of property affected might present their objections thereto." It is a sufficient answer to this contention to say that said resolution was the final resolution for said improvement, and no notice thereof is required by the statute.
It is also contended that said board had no jurisdiction to contract for said improvement or cause the same to be made, because (1) the cost of said improvement, as fixed by the contract, exceeded fifty per cent of the aggregate value of the property, as it was assessed for taxation, exclusive of improvements, subject to be assessed to pay for said improvement; (2) the cost of that part of said improvement south of the south line of Perry street, as fixed by said contract, exceeded fifty per cent of the aggregate value of all the real estate within said limits, as the same was assessed for taxation, exclusive of improvements, subject to be assessed to pay for that part of said improvement; (3) the cost of said improvement was estimated for the entire length thereof per running foot, whereas portions of that part of Main street to be improved were not uniform in the extent and kind of the proposed improvement.
Appellant's said grounds one, two and three for claiming that the board of trustees was without jurisdiction seem to be predicated upon the theory that this proceeding is governed by § 8710 Burns 1908, Acts 1905, p. 219, § 107, in which, among other things, it is provided: "Nor shall any contract be let for the improvement of any street, alley, or other public place, in any city of the first, second or third class, the total cost of which shall exceed fifty per cent of the aggregate value of the property as it is assessed for taxation, exclusive of the improvements, and subject to be assessed, to pay for said proposed improvement."
It is expressly provided in § 8959, supra, that the improvement of streets in incorporated towns should be governed by said section and sections 108-120 of the act of 1905, supra. Section 107 of said act applies only to improvements in cities of the first, second or third class, and has no application whatever to the improvement of streets or alleys in towns.
It is next insisted by appellant that the board of trustees of appellee town of Rochester had no jurisdiction to order or make such improvement, or to contract therefor, and the same was void, because (1) the declaratory resolution adopted November 16, 1905, was "too indefinite as to the kind of material to be used in the proposed paving, two kinds being named;" (2) "said resolution did not state the size or kind of paving block to be used, nor the size or kind of curbing, nor the extent of excavation contemplated in grading, nor the number, size, kind or character of the sewer inlets to be constructed, and did not declare a necessity for changing the grade of the street at any point between the termini of the proposed improvement;" (3) said board of trustees did not, prior to the adoption of said final resolution on December 9, 1905, "determine and specify the kind of improvement to be made;" (4) said board did not, immediately after the adoption of said final resolution, adopt detailed plans and specifications of said proposed improvement; (5) "by the terms of the contract, the contractor, Hoffman, was authorized to sell the earth excavated from Main street, in front of and adjoining appellant's said real estate, and to appropriate the proceeds thereof to his own use;" (6) "said contract authorized the engineer finally and conclusively to determine its fulfilment, in like manner to determine the sum of money due to the contractor for work done, to pass upon the quality of material to be used, and provided that the contractor shall furnish material and do work not mentioned nor included in said resolution."
Section 8959, supra, provides that whenever the board of trustees of an incorporated town desires to improve a street in such town at the expense of the "abutting or adjacent property," "it shall order the same by the adoption of a resolution declaring such improvement to be necessary, and also stating the kind, size, location and terminal points thereof."
It is alleged in the complaint that the board of trustees "adopted and caused to be entered upon the records a resolution declaring a necessity for the improvement of said Main street from the south line of Pearl street in said town to the south line of lot four in Jonas Goss's addition to Rochester, a distance of about 3,100 feet, by grading and paving with vitrified shale or clay paving block, or other paving material, and by setting all necessary curbs and sewer inlets to the width of forty-two feet." This was a substantial compliance with that part of § 8959, supra, heretofore set out. The fact that two or more kinds of material for the improvement of said street were mentioned in said resolution does not render it void.
Section 8959, supra, provides for a hearing by the board of trustees of objections and suggestions in regard to the material to be used, and also...
To continue reading
Request your trial