McEneney v. The Town of Sullivan
| Citation | 25 N.E. 540,125 Ind. 407 |
| Decision Date | 15 October 1890 |
| Docket Number | 15,423 |
| Parties | McEneney et al. v. The Town of Sullivan |
| Court | Supreme Court of Indiana |
From the Sullivan Circuit Court.
Judgment affirmed.
T. J Wolfe, I. H. Kalley, W. C. Hultz and O. B. Harris, for appellants.
G. W Buff, J. S. Bays, J. T. Hays and H. J. Hays, for appellee.
The appellants seek an injunction preventing the appellee from improving a street on which they are abutting owners at their expense. The town assumes to proceed under the act of March 8th, 1889 (Elliott's Supp., section 812). It is alleged in the complaint that two-thirds of the adjoining lot-owners did not petition for the work; that two separate improvements were attempted to be made under one petition, to wit, the improvement of Main street, on the north side of the public square, and the improvement of Main street on the south side of the public square; that the improvement was not made according to the contract, and that the street was not improved according to the grade established by the civil engineer. The verified answer shows that a petition was presented to the board of town trustees, and that the board found that it was signed by the requisite number of persons; that by a unanimous vote of the board a resolution was adopted declaring that the improvement was necessary, and directing that a notice to the property-owners should be published; that the notice was published, notifying such owners to make objections to the improvement; that the board met at the time specified for the purpose of hearing objections, but none were made. The answer further shows that a notice inviting proposals was duly published; that bids were received, the contract awarded, and the work done under it according to the specifications and profile. The evidence adduced upon the hearing amply supports, and in full detail the averments of the answer which we have given in bare outline.
We are very clear that the court did not err in dissolving the restraining order or temporary injunction, for no case is made by the appellants.
Notice at some stage of the proceedings prior to a conclusive judgment is requisite in order to authorize the subjection of property to a special lien for a local assessment. Barber, etc., Co. v. Edgerton, post, p. 455; Kuntz v. Sumption, 117 Ind. 1, 19 N.E. 474; Garvin v. Daussman, 114 Ind. 429, 16 N.E. 826; Stuart v. Palmer, 74 N.Y. 183; State, ex rel., v. City of Fond du Lac, 42 Wis. 287. The trend of the decisions of the Federal Courts is very much in the direction that where there is no notice there is no process of law within the meaning of the Fourteenth Amendment. If that be so the question has become a Federal one, and the decisions of the United States Supreme Court are controlling, and they seem to require notice as an element of due process of law. Scott v. City of Toledo, 36 F. 385. See authorities n. 2, Elliott Roads and Streets, p. 397, and n. 1, p. 153. But however this may be, our own decisions, and those of many other States, do affirm that notice is essential. As these decisions declare the law, it is the duty of the Legislature to provide for some notice, but it is within its power to prescribe what the notice shall be. Walker v. Boston, etc., Railroad, 3 Cush. 1; City of Salem v. Eastern R. R. Co., 98 Mass. 431; Mason v. Messenger, 17 Iowa 261; Matter of Village of Middletown, 82 N.Y. 196.
It is probably true that a notice so palpably unreasonable as to be of no avail would not meet the requirements of the Constitution, and it would be the duty of the courts to adjudge it insufficient, but it would require a very clear and strong case to authorize judicial interference. There is no such case before us, for there is a notice provided which can not be declared unreasonable. Quill v. City of Indianapolis, 124 Ind. 292, 23 N.E. 788.
The contention that the act of March 8th, 1889, is unconstitutional because it fails to provide notice to the property-owners can not be sustained.
The attack made upon the proceedings of the corporate officers is a collateral one, and it is well settled that upon such an attack only defects or irregularities affecting the jurisdiction can be made available. Any other rule would break down the distinction between collateral and direct attacks and open the way to great wrongs and abuses. But upon this question the authorities are quite well agreed; indeed, the only phase of the question upon which there is diversity of opinion is as to what shall be considered jurisdictional facts. Our own cases uniformly hold that upon such an attack as the present only such questions as affect the jurisdiction can be considered. Montgomery v. Wasem, 116 Ind. 343, 15 N.E. 795, and cases cited; Jackson v. Smith, 120 Ind. 520, 22 N.E. 431, and cases cited; Barber, etc., Co. v. Edgerton, supra. It is obvious, therefore, that the questions here presented are radically different from such as might be presented by a direct attack.
Questions as to the manner in which the work was done under the contract and kindred questions can not, it is manifest, be considered in a suit for injunction, for such questions do not go to the jurisdiction. Authorities cited in note 5, Elliott Roads and Streets, p. 442. The settled rule that only questions going to the jurisdiction can be considered in a suit for injunction requires us to decline to consider or decide many of the questions which the appellants endeavor to present.
Aside from the question of...
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