Rickcords v. City of Hammond

• Decision Date: 06 May 1895
• Docket Number: 9,202.
• Citation: 67 F. 380
• Parties: RICKCORDS et al. v. CITY OF HAMMOND et al.
• Court: United States Circuit Court, District of Indiana

67 F. 380

RICKCORDS et al. v. CITY OF HAMMOND et al.

No. 9,202.

United States Circuit Court, D. Indiana.

May 6, 1895

Olds &amp Griffin, for complainants.

Peter Crumpacker, for defendants.

BAKER District Judge.

This is a suit to enjoin the collection of an assessment, amounting to $3,527.93, made upon the real estate of the complainants as their proportionate share of the cost of a sewer constructed in and along Calumet avenue, in the city of Hammond, under and pursuant to certain statutes of the state. Construing these statutes the supreme court of the state has repeatedly held that a suit would not lie to restrain the collection of an assessment after the completion of a public improvement, unless it was made to appear that the common council had proceeded without taking the statutory steps necessary to acquire jurisdiction of the parties. Jurisdiction of the subject-matter is conferred by the statute. Paving Co. v. Edgerton, 125 Ind. 455, 25 N.E. 436, and cases there cited. In this case the sewer has been constructed, the assessment made, and a precept issued for its collection. Hence the only question open to inquiry is whether the common council acquired jurisdiction to make the improvement. This leads to the inquiry as to what acts are to be deemed jurisdictional, in such sense that their omission will render an assessment made after the completion of the work illegal and void. It has been said by this court in the case of Railway Co. v. Huehn, 59 F. 335, that it is thoroughly well settled in every tribunal administering justice according to the rules of the common law that the proceedings of a municipal corporation clothed with power to act, if it has proceeded within the scope of its statutory powers, cannot be collaterally assailed for mere errors or irregularities. And it is equally well settled that a court of equity will not, in a suit for an injunction, examine any errors or irregularities in a proceeding to construct a sewer or other public improvement, where the statute provides that such errors or irregularities may be reviewed on appeal. The statute (2 Burns' Rev.St.Ind. 1894, Sec. 4298) provides for an appeal when, as in this case, a precept has been issued to collect the assessment. It is enacted:

'Any owner of land or his representatives aggrieved by such precept may appeal therefrom, within twenty days after such demand or publication, to the circuit court of the county wherein such city is situated upon filing sufficient bond with the clerk of said city, conditioned for the payment of whatever judgment may be rendered against such appellant in said court and such appeal shall stay all proceedings by such treasurer. And the trial of such appeal shall be conducted as other trials of civil causes are conducted in said courts; provided, that no questions of the fact shall be tried which may arise prior to the making of the contract for the said improvement under the order of the council. The clerk shall, upon the filing of said bond, forthwith make out and certify, under his hand and official seal, a true and complete copy of all papers connected in any way with the said street improvement, beginning with the order of the council directing the work to be done and contracted for, and including all notices, precepts, orders of council, bonds and other papers filed in said matter, which transcript shall be in the nature of a complaint, and to which the appellant shall answer upon rule; and in case the court and jury shall find, upon trial, the proceedings of said officers subsequent to said order directing the work to be done, are regular that a contract has been made, that the work has been done, in whole or in part, according to the contract, and that the estimate has been properly made thereon, then said court shall direct the said property to be sold and conveyed by the sheriff thereof as the said treasurer is hereinafter directed to sell and convey property liable to street improvements.'

The statute declares that on such appeal no question of fact shall be tried which arises prior to the making of the contract for the improvement under the order of the council. The statute further declares...