Reinken v. Fuehring

• Decision Date: 24 February 1892
• Docket Number: 16,447
• Citation: 30 N.E. 414,130 Ind. 382
• Parties: Reinken v. Fuehring et al
• Court: Indiana Supreme Court

30 N.E. 414

130 Ind. 382

Reinken v. Fuehring et al

No. 16,447

Supreme Court of Indiana

February 24, 1892

From the Marion Circuit Court.

Judgment affirmed.

C. S Denny and W. F. Elliott, for appellant.

A. L Mason, for appellees.

Coffey J. Elliott, J., took no part in the decision of this cause.

OPINION

Coffey, J.

The appellees brought this suit in the Marion County Circuit Court to foreclose a lien for the amount assessed against the appellant's real estate for sweeping the street in front of his property in the city of Indianapolis, under a contract made between the city and the appellees pursuant to the provisions of the city charter. A demurrer to the complaint was overruled, and the appellees had judgment, from which this appeal is prosecuted.

The charter of the city of Indianapolis is found in the acts of the General Assembly of 1891, page 137. It provides for the mode of improving the streets and the payment for such improvements, and confers on the city, through its proper officers, the power to make contracts for sprinkling and sweeping such streets, in the city, as it may deem proper, and to assess against the property-holders abutting on such streets the cost of such sprinkling and sweeping. The only question before us for decision relates to the constitutionality of so much of the act as authorizes the city to contract for sprinkling and sweeping the streets at the cost of the property-holders along the line of such streets, it being contended by the appellant that these provisions are unconstitutional for the reasons:

First. That it violates the provisions of our State Constitution requiring an equal and uniform rate of taxation.

Second. Because, even if the city has power to compel abutting property-owners to pay for sweeping the streets in front of their property, it has no power to compel them to do so, and, at the same time, compel them to pay into the general fund a part of the cost of cleaning other streets as provided for in the act.

Third. Because the proceeding which the act attempts to authorize amounts to a taking of private property without due compensation and due process of law.

To support his contention as to the first proposition presented, the appellant relies, to some extent, upon the case of Gridley v. City of Bloomington, 88 Ill. 554, and the case of City of Chicago v. O'Brien, 111 Ill. 532. These cases hold that an ordinance making it the duty of the owner or person occupying premises abutting upon a street to keep the sidewalks free from snow and ice, and providing for the enforcement of such ordinance by the infliction of penalties, is void. The cases seem to rest, principally, upon the peculiarity of the laws of the State of Illinois, under which the lot-owner does not own the fee in the street. The last case, however, was decided by a divided court, three of the judges refusing to concur in the conclusion reached.

The authorities make a clear distinction between the word "taxation" and the word "assessment." "'Taxes' are impositions for purposes of general revenue; 'assessments' are 'special and local impositions upon property in the immediate vicinity' of an improvement for the public welfare, 'which are necessary to pay for the improvement, and laid with reference to the special benefits which such property derives from the expenditure.'" Palmer v. Stumph, 29 Ind. 329.

This distinction is recognized in nearly all the States of the Union. For a collection of the authorities upon this subject see the case above cited.

The assessment, therefore, made against the owners of property along the streets required to be swept, under the act in question, to pay the expense of such sweeping, is not a tax, but a local assessment.

The question is then presented as to whether a local assessment for this purpose can be sustained under our Constitution?

If it can be sustained at all, it must be upon the ground that it is the proper exercise of the police power of the State, and a special benefit to the abutting property-owner.

The power of a municipal corporation to order sidewalks of a particular kind, and to assess against the abutting property-owner an amount necessary to pay for the same, and to pay for keeping the same in repair and proper condition for the use of the public, is generally upheld upon the ground that it is proper exercise of the police power of the State. Goddard, Petitioner, etc., 16 Pick. 504; Palmer v. Way, 6 Colo. 106; Cooley Taxation, pp. 396-7; State, etc., v. Mayor, etc., 8 Vroom, 415; Kirlby v. Boylston, 14 Gray, 249; Pedrick v. Bailey, 12 Gray, 161; Moore v. Gadsden, 93 N.Y. 12; Hartford v. Talcott, 48 Conn. 525.

Judge Cooley says: "The cases of assessments for the construction of walks by the side of the streets, in cities and other populous places, are more distinctly referable to the power of police. These foot-walks are not only required, as a rule, to be put and kept in proper condition for use by the adjacent proprietors, but it is quite customary to confer by the municipal charters full authority upon the municipalities to order the walks of a kind and quality by them prescribed to be constructed by the owners of adjacent lots at their own expense, within a time limited by the order for the purpose, and in case of their failure so to construct them, to provide it shall be done by the public authorities, and the cost collected from such owners, or made a lien upon their property. When this is the law the duty must be looked upon as being enjoined as a regulation of police, because of the peculiar interest such owners have in the walks, and because their situation gives them peculiar fitness and ability for performing, with promptness and convenience, the duty of putting them in proper state, and of afterwards keeping them in a condition suitable for use." Cooley Taxation, supra.

Assuming as held by these authorities, that the power to make local assessments to pay for local improvements or benefits is to be referred to the police power of the State, we are naturally led to inquire whether the assessments provided for in the charter now under consideration amount to a taking of...