Niklaus v. Conkling

Decision Date17 April 1889
Docket Number14,122
Citation20 N.E. 797,118 Ind. 289
PartiesNiklaus et al. v. Conkling
CourtIndiana Supreme Court

From the Jennings Circuit Court.

Judgment reversed, with instructions to restate conclusions of law, and to enter a judgment ordering the sale of fifty feet of the land to satisfy the assessment in favor of the appellee.

J. G Berkshire and G. F. Lawrence, for appellants.

A. G Smith, for appellee.

Elliott C. J. Berkshire, J., did not take any part in the decision of this case.

OPINION

Elliott, C. J.

The appellee instituted this action to enforce an assessment for a street improvement made under a contract entered into prior to the 24th day of November, 1882. The work under the contract was completed in November, 1882, estimates were made and approved, and precepts were issued on the assessment, directing the sale of a strip of the appellant's ground fifty feet in width. On one of these precepts a sale was made, and the strip bid in at the sale by the appellee, on the 28th day of November, 1883.

At the time the proceedings we have mentioned were had, the act of April 14th, 1881, was in force, and in it, among others, was written this provision concerning the lien of assessments for street improvements: "In all contracts specified in the last preceding section, the cost thereof shall be estimated according to the whole length of the street or alley, or the part thereof to be improved; * * and the city shall be liable to the contractor for so much thereof only as is occupied by public grounds of the city bordering thereon and the crossings of streets and alleys; and the owners of the lots * * shall be liable to the contractor for their proportion of the cost, in the ratio of the front lines of the lots owned by them to the whole improved line; and in making the assessments against such owners for the improvement, the ground shall be assessed across the ground fronting or immediately abutting on such improvement, back to the distance of fifty feet from such front line, whether such ground be subdivided by platting or conveyance or in any other manner." R. S. 1881, section 3163.

It will be observed that the general terms employed by the statute cover only the front line, but that the specific terms--those which expressly direct how the assessment shall be made, provide that the ground shall be assessed back to the distance of fifty feet from such front line. The authority to levy the assessment is purely statutory, and no other assessment than such as the statute prescribes can be made. State, ex rel., v. AEtna L. Ins. Co., 117 Ind. 251, 20 N.E. 144. As it is solely by virtue of the naked statutory power that cities have a right to levy an assessment, they can not levy it upon other property, or upon more property than the statute authorizes.

As the statute of 1881 authorizes them to levy upon fifty feet, they can not, under that statute, rightfully levy an assessment upon a greater quantity of ground.

Statutes conferring power to make such an assessment as the one before us are to be strictly construed. In cases like this, says the Court of Appeals of New York, the municipality "must produce express power therefor in legislative enactment, and must show that in its attempt to tax, it has strictly followed all the legal requirements." Matter of Second Avenue Church, 66 N.Y. 395. Griswold v. Pelton, 34 Ohio St. 482, is a case very like the present, and it was held that the assessment could not legally cover more ground than the statute designated.

It is contended by the appellee's counsel that the act of 1885 enlarged the right of his client, and extended the assessment to one hundred and fifty feet of ground. Acts of 1885, p 207. We can not concur in this view. Without enquiring or deciding whether the Legislature has power to enlarge the lien of a contractor, by changing the quantity of land upon which it fastens from fifty to one hundred and fifty feet, we hold that the act of 1885 does not assume to do this in a case like the present, where the contract has been fully completed and the land bought in at a sale upon a...

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