Reinken v. Fuehring

• Citation: 30 N.E. 414,130 Ind. 382
• Parties: REINKEN v. FUEHRING et al.
• Decision Date: 24 February 1892
• Court: Supreme Court of Indiana

130 Ind. 382
30 N.E. 414

REINKEN
v.
FUEHRING et al.

Supreme Court of Indiana.

Feb. 24, 1892.

Appeal from circuit court, Marion county; E. A. BROWN, Judge.

Action by Fred. Fuehring and others against Henry Reinken, Sr., to foreclose a lien on defendant's real estate. Defendant appeals from a judgment overruling his demurrer to the complaint. Affirmed.

Denny & Elliott, for appellant. Augustus L. Mason, for appellees.

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 Acts Gen. Assem. 1891, p. 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 provision 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,

[30 N.E. 415]

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 costs 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...