Sims v. Hines

• Decision Date: 28 January 1890
• Docket Number: 14,026
• Parties: Sims v. Hines
• Court: Indiana Supreme Court

23 N.E. 515

121 Ind. 534

Sims v. Hines

No. 14,026

Supreme Court of Indiana

January 28, 1890

From the Clinton Circuit Court.

Judgment affirmed.

J. N Sims and J. V. Kent, for appellant.

O. E Brumbaugh and W. R. Hines, for appellee.

OPINION

Elliott, J.

The appellant prosecutes this appeal from a judgment enforcing an assessment made for a street improvement, and his principal contention is that the transcript, which the statute declares shall be a complaint, is insufficient.

The statutory provision is a singular one, inasmuch as it makes the transcript of the proceedings of the city authorities the complaint of the plaintiff; although, in fact, he has nothing to do with the proceedings, for they are conducted by the representatives of the municipality. The property-owner really assails the proceedings of those who are his chosen representatives, and not the acts of the contractor, when he demurs to the transcript, and it would seem that, in strict right, he should not profit by errors committed prior to the time the contractor acquires a special interest in the matter. Our statute recognizes the injustice of holding the contractor to a rigid accountability for the proceedings of the municipal officers, for it provides that "no question of fact shall be tried which may arise prior to the making of the contract for the said improvement under the order of the council," and it also explicitly declares what questions shall be tried. R. S. 1881, section 3165. This provision secures the contractor some protection, and really does the property-owner no harm; for what chiefly interests the property-owner follows the contract, as a general rule, and little is lost to him by precluding him from litigating questions which arise prior to the execution of the contract. It is, at all events, nothing more than justice to require a property-owner, who opposes the proceedings, to make known his objections before the contractor is fastened by his contract; and it is but fair to the contractor to relieve him from accountability for what occurs prior to the time he acquires a special interest in the proceedings. This right is fully open to the property-owner, and the fault is his own if he does not avail himself of it. We do not adduce these arguments for the purpose of proving that the Legislature has the power to enact a law providing that the property-owner shall be estopped from litigating questions which arise prior to the time the contract is entered into, for that question is settled by authority; but our purpose is to show that the Legislature intended to give full effect to a just and equitable principle by express enactment, and that the intention of the Legislature should be so carried into effect as to make the statute operate beneficially and equitably.

There can be no doubt that the Legislature has power to declare what questions shall be and what questions shall not be tried on appeal. It has, indeed, the authority to deny an appeal and to make the decision of the municipal officers final and conclusive. State v. Mayor, etc., 29 N.J.L. 441; Ricketts v. Village of Hyde Park, 85 Ill. 110; Murray v. Tucker, 73 Ky. 240, 10 Bush 240; Dougherty v. Miller, 36 Cal. 83; Emery v. Bradford, 29 Cal. 75; Fass v. Seehawer, 60 Wis. 525, 19 N.W. 533. If the Legislature can, as the authorities declare it may do, entirely deny an appeal, there can be no question as to its right to limit the questions which may be tried.

Our decisions were for a long time entirely harmonious in holding the provision of the statute to which we have referred to be valid and effective. City of Indianapolis v. Imberry, 17 Ind. 175; Board, etc., v. Silvers, 22 Ind. 491; Palmer v. Stumph, 29 Ind. 329; Hellenkamp v. City of Lafayette, 30 Ind. 192; Kalbrier v. Leonard, 34 Ind. 497; Gulick v. Connely, 42 Ind. 134; Martindale v. Palmer, 52 Ind. 411.

Unfortunately, however, some of the cases departed from the earlier decisions, as well as from principle, and asserted a somewhat different rule. Moberry v. City of Jeffersonville, 38 Ind. 198; McEwen v. Gilker, 38 Ind. 233; Kretsch v. Helm, 45 Ind. 438.

But the later cases give support to the earlier, and deny the soundness of those which left the true line. Johnson v. Allen, 62 Ind. 57; McGill v. Bruner, 65 Ind. 421; City of Fort Wayne v. Shoaff, 106 Ind. 66, 5 N.E. 403; Taber v. Ferguson, 109 Ind. 227, 9 N.E. 723; Taber v. Grafmiller, 109 Ind. 206, 9 N.E. 721; Weaver v. Templin, 113 Ind. 298, 14 N.E. 600 (301); City of Greenfield v. State, ex rel., 113 Ind. 597, 15 N.E. 241; Wiles v. Hoss, 114 Ind. 371, 16 N.E. 800; Clements v. Lee, 114 Ind. 397, 16 N.E. 799; Ross v. Stackhouse, 114 Ind. 200, 16 N.E. 501; City of Elkhart v. Wickwire, ante, p. 331; Jackson v. Smith, 120 Ind. 520, 22 N.E. 431.

It is our duty to declare which line of cases shall be followed, that represented by Moberry v. City of Jeffersonville, supra, or that represented by Palmer v. Stumph, supra, and we have no hesitation in adjudging that the doctrine of the case last named is the one which should prevail, and that the doctrine of Moberry v. City of Jeffersonville, supra, and cases following it, should be declared to be overruled, in so far as it is in conflict with the earlier and the later cases. As was shown in Taber v. Ferguson, supra, the doctrine which we here assert is the only one which can be applied without working injustice in many cases. Our conclusion is that where the transcript shows jurisdiction no question of fact can be tried which arises prior to the making of the contract, nor will any defect or irregularity which occurred prior to that time affect the right of the contractor to enforce collection of the assessment. From this it necessarily results that, although irregularities or errors may be disclosed by the transcript, a demurrer will not lie unless the errors or irregularities affirmatively appear to have occurred after the contract was entered into with the city. If, to state the conclusion in a somewhat different form, there is jurisdiction, although there may be defects and irregularities, no questions can be tried except such as arise after the execution of the contract.

This conclusion is essential in many cases to secure to the contractor the payment for work done under such circumstances as render it inequitable for the property-owners to interpose a defence, for any other rule would preclude the contractor from taking advantage of an estoppel, as well as from showing that the improvement was really made upon the petition and under the direction of the property-owner. As the law frames the complaint for the contractor, he can neither add to it nor take from it, and it would be a gross perversion of justice to hold him irrevocably bound by what occurred before he became especially interested in the proceedings....