Millikan v. Crail

• Citation: 98 N.E. 291,177 Ind. 426
• Decision Date: 24 April 1912
• Docket Number: No. 21,991.,21,991.
• Parties: MILLIKAN et al. v. CRAIL et al.
• Court: Supreme Court of Indiana

177 Ind. 426

98 N.E. 291

MILLIKAN et al.

v.CRAIL et al.

No. 21,991.

Supreme Court of Indiana.

April 24, 1912.

Appeal from Howard Circuit Court, Howard County; L. J. Kirkpatrick, Judge.

Action by Ira F. Crail and others against Frank M. Millikan and others. From a judgment for plaintiffs, defendants appeal. Transferred from the Appellate Court under section 1405, Burns' Ann. St. 1908; Acts 1901, c. 259. Reversed, with instructions to render judgment for plaintiffs as stated.Blacklidge, Wolf & Barnes, for appellants. Harness, Moon & Voorhis and Gifford & Gifford, for appellees.

COX, J.

This action was brought by appellees to foreclose assessments made against certain lots belonging to appellants for the improvement of a street in the city of Kokomo, on which they abutted. The court found the facts specially and stated its conclusion of law thereon, which was favorable to appellees, and rendered judgment for them accordingly. From this judgment, this appeal was taken by appellants, who, by proper assignments of error, challenge the sufficiency of the complaint, the correctness of the conclusion of law, and the ruling of the court in denying their motion for a new trial.

[1] It is contended that the complaint is defective and insufficient to withstand a demurrer by reason of a failure to allege that the contract for the work was let to appellees, and facts showing appellees to be entitled to the assessments. We think the complaint is not fairly open to the objection raised to it. In its title, Ira F. Crail, George W. Daniels, and John W. Wilson are designated as plaintiffs. It alleges that the firm of Crail, Daniels & Wilson bid on the proposed work, that their bid was the lowest; that they were awarded the contract and entered into a contract with a board of public works for the performance of the work. It then alleges that the said plaintiffs duly executed their bond to the approval of said board for the execution of the contract, and that, pursuant thereto, said plaintiffs entered upon the construction of said improvement, and in all things completed the same according to the contract. The complaint shows with adequate certainty that appellees were the contractors for the work, performed it, and therefore were entitled to the assessments.

[2] Section 107 of the act of 1905, being section 8710, Burns 1908, under which this improvement was made, provides that the board of public works, after passing a resolution for the improvement of a street, shall publish a notice of the resolution, naming therein a date and place for hearing remonstrances, and that a like notice shall be sent by mail to each owner of property affected by the improvement. The court found that the notice of the resolution was published in a daily paper in accordance with the statute, but that no notices were sent by mail to appellants. It was further found that appellants were residents of Indianapolis, and that they had no personal knowledge of the intention of the city of Kokomo to improve the street, or that it was being improved, until after the work was completed. It is contended that, as it appears from this finding that there was not full compliance with the statute respecting notice of the preliminary resolution and of the time and place of hearing upon it, the court's conclusion of law, favorable to appellees, was erroneous.

It must be kept in mind that this is a collateral attack upon the assessments which the board of works of the city of Kokomo, acting in a quasi judicial capacity, fixed upon the property of appellants, and that many irregularities in the proceeding which would be fatal to it in a direct attack will be impotent in this, where only such questions as go to the jurisdiction can be tried.

[3] That the board of public works of the city of Kokomo had jurisdiction of the subject-matter of the proceeding is, of course, not questioned. But it is contended that the mailing of notices to appellants of the preliminaryresolution for the improvement, in addition to the published notices, was a step necessary to be taken to acquire jurisdiction over the persons of appellants to authorize a valid assessment against their property. A property owner has a constitutional right to notice of an assessment, and to an opportunity to be heard upon the question of whether or not the benefits equal the assessment made against his property, at some time before the assessment becomes a finality. The general rule is that an assessment, made without such notice and opportunity for a hearing, is a taking of property without due process of law, and an invasion of constitutional right. Page & Jones on Taxation by Assessment, § 119; Elliott on Roads and Streets (3d Ed.) §§ 517 (429), 699 (564); Weaver v. Templin, 113 Ind. 298, 14 N. E. 600;Garvin v. Daussman, 114 Ind. 429, 16 N. E. 826, 5 Am. St. Rep. 637;Kuntz v. Sumption, 117 Ind. 1, 19 N. E. 474, 2 L. R. A. 655;McEneney v. Town of Sullivan, 125 Ind. 407, 25 N. E. 540. There must be notice to give jurisdiction of the person and his property; and if there be none there is no jurisdiction, and the proceeding is abortive, and the resulting assessment is void. Hobbs v. Board, 103 Ind. 575, 578, 3 N. E. 263;Gavin v. Board, 104 Ind. 201, 3 N. E. 846;Board v. Fahlor, 114 Ind. 176, 178, 15 N. E. 830;Scudder v. Jones, 134 Ind. 547, 551, 32 N. E. 221;Guckien v. Rothrock, 137 Ind. 355, 37 N. E. 17;Daly v. Gubbins, 35 Ind. App. 86, 73 N. E. 833.

[4] It is within the power of the Legislature to determine the manner in which notice shall be given and what shall be sufficient notice. Carr v. State, 103 Ind. 548, 3 N. E. 375;Weaver v. Templin, 113 Ind. 298, 14 N. E. 600;Garvin v. Daussman, 114 Ind. 429, 16 N. E. 826, 5 Am. St. Rep. 637;Johnson v. Lewis, 115 Ind. 490, 18 N. E. 7;Hobbs v. Board, 103 Ind. 575, 580, 3 N. E. 263; Elliott on Roads and Streets (3d Ed.) § 223 (199); Page & Jones on Taxation by Assessment, §§ 121, 122.

[5] While the property owner must have notice at some time before the final assessment is made, in order to give the tribunal, vested with jurisdiction of the subject-matter, jurisdiction over his person and property, and so meet the constitutional requirements of due process of law, it is not required that he shall be notified of the intention to make the improvement, nor of the preliminary resolution. Neither is he entitled to notice of every intermediate step in the proceeding leading to an assessment against his property. It is sufficient if notice is given him before the assessment becomes final and conclusive. Page & Jones on Taxation by Assessment, §§ 125, 727; Elliott on Roads and Streets, §§ 614 (514), 699 (564).

The Barrett law (Burns' Statutes 1901, § 4289), which governed such proceedings before the present law was enacted, provided that the council or board of trustees should pass a resolution declaring the necessity for the improvement. It also provided that notice of the resolution should be published, and property owners given an opportunity to make objection to the necessity for the improvement by remonstrance. This court held, under that statute, that the giving of such notice was discretionary with the council or board, and that failure to publish the notice did not invalidate the proceedings; the property owners being awarded a hearing on the assessments by a notice fixing a time therefor before they became final. Quill v. City of Indianapolis, 124 Ind. 292, 23 N. E. 788, 7 L. R. A. 681;Barber Asphalt Co. v. Edgerton, 125 Ind. 455, 25 N. E. 436;Hughes v. Parker, 148 Ind. 692, 48 N. E. 243;Pittsburgh, etc., R. Co. v. Fish, 158 Ind. 525, 63 N. E. 454.

Counsel for appellants concede the correctness of these decisions, but contend that a difference in the provisions of section 4289, supra, and section 8710, under which this proceeding was conducted, makes them inapplicable here. The part of section 8710 material to the question is: “Whenever the board of public works shall order the improvement of any street, alley, sidewalk or other public place in such city, in whole or in part, it shall adopt a resolution to that effect, setting forth a description of the place to be improved and full details, drawings and specifications for such work. Notice of such resolution shall be published, which notice shall state that on the day named the board will hear all persons interested, or whose property is affected by the proposed improvement, and will decide whether the benefits that will accrue to the property to be assessed, abutting and adjacent to the proposed improvement and to said city, will be equal to or exceed the estimated cost of the proposed improvements. And a like notice shall be sent by mail to each property owner affected by the proposed improvement: Provided, that the mailing of said notice to the names of owners as they appear on the assessor's books of the county in which the land is located shall be considered a compliance with this requirement. Provided, further, that nothing contained in this section shall affect the legality of the proceedings.”

The position of the appellants' counsel is that the part of the section which specifically provides for a determination by the board, on the day fixed for a hearing on the preliminary resolution of which notice is to be given, of the question whether the benefits which will accrue to the property to be assessed, abutting and adjacent to the proposed improvement, and to the city, will be equal to or exceed the estimated...