Murray v. Gault
| Decision Date | 23 April 1913 |
| Docket Number | No. 22,394.,22,394. |
| Citation | 179 Ind. 658,101 N.E. 632 |
| Parties | MURRAY et al. v. GAULT et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Pulaski County; J. C. Nye, Judge.
Action for an injunction by Asa J. Murray and others against James A. Gault and others. Judgment was for defendants in the circuit court and plaintiffs appealed to the Appellate Court, whence the case was transferred under Burns' Ann. St. 1908, § 1394. Judgment of circuit court affirmed.
For opinions in Appellate Court, see 98 N. E. 878, and 100 N. E. 312.
Burson & Burson, of Winamac, and P. M. Buchanan, of Rochester, for appellants. George W. Holman, of Rochester, Wm. H. Parkinson, of Indianapolis, E. B. Sellers, of Monticello, and Myers & Yarlott, of Logansport, for appellees. Holman, Stephenson & Bryant, Lairy & Mohoney, and McConnell, Jenkins, Jenkins & Stuart, on leave of court.
This was a suit by appellants against appellees to enjoin the collection of alleged illegal ditch assessments. Appellees demurred to the complaint for insufficient facts, were sustained, and these rulings are here assigned as erroneous.
It is alleged in the complaint that in 1902 appellees (except Davisson) filed with the auditor of Cass county their petition for the construction of a ditch having its source in that county, and extending into the counties of Fulton, Pulaski, and White, and terminating in the Tippecanoe river; that “commissioners” (viewers) were appointed who on May 6, 1903, made a report showing benefits,etc., and the same was confirmed, and the ditch ordered established by the board of commissioners of Cass county; that on August 27, 1903, a contract for the construction of the ditch was awarded to one Hillis for $53,000, who gave bond; that thereupon the board proceeded to apportion and assess the construction cost ($53,000), together with other necessary expenses, estimated at $15,000, and making a total of $68,000 against the lands reported benefited, and in proportion to the benefit; that lists of such assessments were then made separately in each of the counties, which assessment lists show the amounts required to be paid for construction on each parcel of land; that each of appellants fully paid such construction assessment against his lands, and afterwards, and after the ditch was partially constructed, the entire proceeding was by appellees, without notice to appellants, transferred to the Pulaski circuit court, which assumed jurisdiction thereof.
It is also alleged that the latter court, “without notice to appellants, appointed appellee Davisson as commissioner to construct the ditch; that Hillis defaulted, and failed to complete his contract, and Davisson, commissioner, proceeded to let contracts for the completion of the work, and thereafter, in December, 1907, filed in the Pulaski circuit court his petition to be allowed to reassess the lands affected by the ditch, and originally assessed, and alleging therein that the original amount fixed by the Hillis contract is insufficient to complete the work; that the petition was granted, and pursuant to an order of the court he reassessed the lands of appellants, and made a schedule thereof, copies of which were filed in the offices of the recorders of the four counties, to be recorded as assessments made against the several tracts of land; that the commissioner gave notice to appellants that these assessments must be paid in 10 monthly installments.
A schedule covering many pages of the record, showing the original assessments for construction, and the new assessments, is set out, and is in the following form:
+-----------------------------------------------------------------------------+
¦Name of Owner.¦Description. of ¦Sec.¦T.¦R. ¦Assessment ¦Assessment by ¦
¦ ¦Land. ¦ ¦ ¦East ¦Paid. ¦Davisson. ¦
+--------------+----------------+----+--+-----+------------+------------------¦
¦Murray, Asa J.¦NW of NW ¦28 ¦29¦1 ¦$67.72 ¦$29.28 ¦
+--------------+----------------+----+--+-----+------------+------------------¦
¦McCaughey, ¦NW of SE ¦36 ¦29¦1 ¦$67.72 ¦$22.28 ¦
¦John E. ¦ ¦ ¦ ¦ ¦ ¦ ¦
+--------------+----------------+----+--+-----+------------+------------------¦
¦McCaughey, ¦Npt SW of NE ¦36 ¦29¦1 ¦$30.10 ¦12.90 ¦
¦Milton ¦ ¦ ¦ ¦ ¦ ¦ ¦
+-----------------------------------------------------------------------------+
It is alleged that the new assessments are void for various reasons, among which are the following: The Pulaski circuit court had no jurisdiction over the subject-matter, and was without authority to appoint a construction commissioner, and had no power to order a further assessment of the lands; that by suit on Hillis' bond enough money can be recovered for the completion of the work, and there exists no necessity for any further assessments.
Appellants assume that the ditch was ordered established under the law of 1885, amended in 1889, 1901, and finally in 1903. Acts 1903, p. 384. This assumption is erroneous. The proceedings were instituted under sections 24 and 25 of an act approved April 21, 1881. Acts 1881, p. 410; R. S. 1881, §§ 4285-4317, inclusive. In the main, this act continued in force until its repeal in 1905 (Acts 1905, p. 480). Sections 16, 19, 20, 21, and 31 were amended in 1891 (Acts 1891, p. 313). Sections 2, 8, and 9 were amended in 1893, so that the construction of a ditch as an entirety might be left to a contractor (Acts 1893, p. 329). Before the viewers had filed their report in relation to this drain (May 6, 1903), section 2 of the act of 1881, amended by the act of 1893, had been again amended (Acts 1903, p. 186). Pending proceedings in which ditches had already been established were saved from the operation of the repealing clause in the act of 1905, and it was expressly provided that such proceedings should be concluded as if the act of 1905 had not been passed. Acts 1905, p. 480 (section 14).
[1][2] In 1907 an act was passed entitled “An act concerning drainage and repealing laws in conflict.” Acts 1907, p. 508. In the second proviso of section 2 of the act is found the following: “Provided, that when any such proposed drain will run into two or more counties *** the circuit court *** of the county having the greatest length of said proposed ditch shall have jurisdiction of said work.” Section 17 of the same act provides that the board of commissioners shall have no jurisdiction over any drain, a part of which is located in another county (Acts 1907, p. 533). Section 21 of the act reads as follows: “All laws and parts of laws heretofore enacted in relation to drainage are hereby repealed: Provided, any pending proceeding shall be continued under this act, except that all proceedings which shall have been commenced under and in accordance with an act entitled ‘An act concerning drainage,’ approved March 6, 1905, shall be concluded and determined in accordance with all of the provisions of said act.” By virtue of the provisions of sections 2, 17, and 21 of the act of 1907 the circuit court of Pulaski county in 1907 assumed jurisdiction of the proceedings.
Appellants earnestly contend that under the second proviso of section 2 of the act of 1907 the Pulaski circuit court acquired no jurisdiction, because this was not a “proposed drain,” but, on the other hand, one long before established, and partly constructed; that the board of commissioners of Cass county lost jurisdiction because of the provisions of section 17, and consequently the proceeding abated. A familiar rule in ascertaining the legislative intent in an ambiguous statute is to so construe it, if possible, as to prevent absurdity or injustice. State v. Ensley, and cases cited, 97 N. E. 113. It was recognized by the Legislature of 1907 that proceedings were then pending for the construction of drains established, not only under the act of 1905, but also under previous acts. The legislators of 1907 must have known, because a matter of general knowledge, that drains were then being constructed, single ones of which extended into and through several counties, involving in construction an expenditure of hundreds of thousands of dollars and a great length of time. It is also a matter of common knowledge that a partially constructed drain may be a hindrance rather than a help in draining wet lands, and under some circumstances might become a nuisance and a menace to public health. It is inconceivable that any legislature should ever deliberately inflict on a community such a scheme of spoliation and evil as contemplated by the abatement of proceedings in the construction of drains already established.
What intent is evinced by the language of the act read in the light of section 8, which declares that the act shall be liberally construed to promote drainage, and considering, also, the previous act of 1905? After the taking effect of the act of 1905, by virtue of the saving clause, the board of commissioners of Cass county retained jurisdiction of the drain in controversy here, the same as if the act had never been passed. Section 17 of the act of 1907 manifestly excludes the idea of boards of commissioners holding jurisdiction of drains extending into more than one county, unless such jurisdiction is saved by some other provision of the act. No such provision appears. By section 21, however, the legislative intent that pending proceedings shall not abate is evidenced by the declaration that “any pending proceedings shall be continued under this act.” Acts 1907, p. 537. This language contains no ambiguity, and it cannot be doubted that the act, as interpreted by the Legislature, was broad enough to confer jurisdiction, over any pending proceeding, on some tribunal therein named, and no doubt it was the intention that jurisdiction...
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