Murray v. Gault

• Decision Date: 31 December 1912
• Docket Number: No. 7,275.,7,275.
• Citation: 100 N.E. 312
• Parties: MURRAY et al. v. GAULT et al.
• Court: Indiana Appellate Court

100 N.E. 312

MURRAY et al.

v.GAULT et al.

No. 7,275.

Appellate Court of Indiana.

Dec. 31, 1912.

On petition for rehearing. Overruled.

For former opinion, see 98 N. E. 878.

P. M. Buchanan, of Rochester, and Burson & Burson, of Winamac, for appellants. Myers & Yarlott, of Logansport, and Holman, Stephenson & Bryant, of Rochester, for appellees.

MYERS, J.

On petition for rehearing, we have re-examined the record in this case as to the points urged by appellees, and we may add that sections 2, 8, and 9 of the act of April 21, 1881, were amended in 1893 (Acts 1893, p. 329), and section 2 as amended was again amended in 1903 (Acts 1903, p. 186). This latter act was approved March 7, 1903, and had an emergency clause putting it in force “from and after its passage.” As the viewers appointed by the board of commissioners did not file their report until May 6, 1903, appellees insist that under the law as it then stood the final judgment of the board did not include the assessments made for construction. Under the amended act, as well as under the original act, it was the duty of the views to report the estimated “total cost of the construction of the whole work,” and “the amount that each tract of land assessed will be benefited by the construction of said work, and the amount that each tract is assessed therefor.” When the board of commissioners approved said report and ordered the construction of the ditch, it then became the duty of the auditor to give notice for sealed bids for the construction of the work, and to let the contract to the lowest and best bidder. As the estimated cost of constructing the ditch in question was more than $3,000, and assuming that the work of construction was not allotted by the viewers, then upon the letting of the contract it was the duty of the board of commissioners to “carefully estimate the entire original cost of such construction, including all damages awarded in said proceedings and all incidental costs and expenses arising in such proceeding” not to be paid by the petitioners, and apportion and assess such total cost against the several parcels of real estate reported by the viewers as benefited, in proportion to the amount of benefits to each tract of land, but not exceeding the benefits reported by the viewers. It was also the duty of the board to determine the number of installments and the period, not to exceed 10 years, in which the assessments shall be paid, and to cause an assessment sheet to...