Southern Ry. Co. of Indiana v. City of Huntingburg

• Decision Date: 21 March 1924
• Docket Number: Nos. 11830,11904.,s. 11830
• Citation: 143 N.E. 294,81 Ind.App. 279
• Parties: SOUTHERN RY. CO. OF INDIANA v. CITY OF HUNTINGBURG et al. KOERNER et al. v. SAME.
• Court: Indiana Appellate Court

81 Ind.App. 279

143 N.E. 294

SOUTHERN RY. CO. OF INDIANA

v.CITY OF HUNTINGBURG et al.

KOERNER et al.

v.SAME.

Nos. 11830, 11904.

Appellate Court of Indiana, Division No. 1.

March 21, 1924.

Appeal from Circuit Court, Dubois County; John F. Dillon, Judge.

Actions by the Southern Railway Company of Indiana, and by Louis F. Koerner and another, against the City of Huntingburg and others, consolidated. Judgments for defendants, and plaintiffs appeal. Reversed with instructions.Humphrey & Humphrey, of Louisville, Ky., John D. Welman, of Evansville, and Bomar Traylor, of Jasper, for appellant Southern Ry. Co. of Indiana.

Leo H. Fisher and Eldo W. Wood, both of Huntingburg, for appellants Koerner.

A. L. Gary, of Rushville, for appellees.

BATMAN, J.

The above-entitled causes, Nos. 11830 and 11904, except in a singular particular hereinafter noted, involve the same questions of law arising from the same state of facts. On a joint petition of all the parties, the oral arguments requested therein were heard jointly, and the two causes are now consolidated for determination on appeal. The appellants are the owners of real estate in the city of Huntingburg, Ind., against which assessments have been made to pay the cost of a sewer system constructed therein. The appellees in each of said causes are the same, being said city, its mayor, treasurer, members of its common council, and the contractor who constructed said system. By said actions appellants seek, on behalf of themselves and others, to have the entire proceeding, and each step taken by said city and its officers for the construction of said sewer system, adjudged to be void; to have the adoption of the assessment roll therefor set aside, and the assessments made thereby declared void and ordered canceled; to enjoin the collection of said assessments against their respective tracts of real estate; and to have their respective titles thereto quieted against the same. The complaint in each of said causes is in a single paragraph, and to each of which appellees filed a demurrer for want of facts. Each of said demurrers was sustained, and in each cause there was a refusalto plead further, and an election to abide the ruling of the court on such demurrers, followed by a judgment in favor of appellees. An appeal is now being prosecuted in each of said causes, based on the adverse rulings stated.

The complaint in each cause, after reciting the various steps taken and acts done by the mayor and common council, and the contractor for the sewer system, in the proceedings therefore, the completion thereof, and the making and adoption of a final assessment roll, makes the following charges in substance, among others, as the basis of the relief sought:

(1) That the preliminary resolution for them construction of said sewer system, and the notice of a hearing thereon, wholly failed to set forth and describe any of the many local sewers, together with their general character, termini, and general course, and that such notice failed to provide for a hearing and determination, as to whether the drainage districts are properly bounded.

(2) That the common council of said city has wholly failed and refused to find and determine whether said drainage districts are properly bounded, and to fix and establish the boundary lines thereof, and has failed to cause an estimate of the total cost of such sewers to be made and filed.

(3) That an erroneous method was adopted in making assessments for local sewers in this that, instead of assessing the cost of each separate local sewer against the real estate abutting thereon the aggregate cost of all such sewers is assessed pro rata against all the real estate abutting thereon, thereby assessing the cost of many such sewers against real estate not receiving any benefits therefrom. That by reason of said erroneous method the real estate abutting on local sewers, where the soil was free from stone and the trenches therefor could be dug cheaply, was assessed with a portion of the cost of other local sewers, where the soil contained stone, which could only be removed by the expensive process of blasting, thereby costing five times as much per lineal foot for the excavation of the trenches for such sewers, as it would have cost had the soil been free from stone. That said erroneous method was followed in making the primary assessment roll for said improvement, and was retained in the final assessment roll adopted by the common council. That the real estate of appellants, assessed for said improvement, abutted on local sewers where no blasting was required in the excavation of the trenches, the same being dug by steam shovel, a far cheaper method, and therefore they have been injured by the adoption of said erroneous method in making said assessments.

The complaint in said cause No. 11830 also alleges that the appellant therein is the owner of eleven tracts or parcels of land (numbered in the complaint from 1 to 11, inclusive, and definitely described) which have been assessed for the cost of said improvement; that tracts Nos. 1, 2, 6, 8, 10, and 11 are the right of way and railroad tracks of appellant, and that they include its superstructures, main, side, and second tracks, turnouts, stations, yard layouts, passenger sheds, and other improvements on such right of way, all of which property is known and designated in law as “railroad tracks”; that there is no authority in law, authorizing said city to assess such property or any part thereof with benefits for the construction of said sewer system; that said pretended assessment against its said property is illegal and void, and constitutes a cloud thereon.

[1] The first charge in the complaints, as stated above, cannot be made the basis of any relief, under the facts alleged, as the time in which appellants might have sought to take advantage thereof, expired ten days after the execution of the contract for the improvement, by reason of a provision in section 8710, Burns' Supp. 1921, which was long before this action was instituted. See Anheier v. Fowler (1913) 53 Ind. App. 535, 102 N. E. 108, where a similar provision, found in section 265 of the act of 1905 concerning municipal corporations (Acts 1905, p. 404), was held to be applicable in a proceeding for the construction of a sewer. By reason of said provision we must accept the contract for the improvement under the facts alleged as valid, although the assessments, as made, may not be enforceable.

[2] In considering the second charge in the complaints, as stated above, we note that section 8722, Burns' 1914, provides, that whenever any sewer or drain, from its size and character, shall be intended and adapted, not only for use by owners of abutting property along the line thereof, but is also intended and adapted for receiving sewage from collateral drains already constructed, or which may be constructed in the future, then the common council shall take certain action, and cause certain things to be done, which includes the giving of notice, and the holding of a hearing, with reference, among other things, to the proper boundaries of the proposed drainage district. Said section then provides as follows:

“If the board shall decide after such hearing that the area or district to be drained is properly bounded, that the special benefits to the property within such district or area, and the benefits, if any, to the said city will be equal to the estimated cost of the improvement as aforesaid, such finding shall be entered of record, and shall be final and conclusive on all parties, and the said resolution shall be confirmed or modified; but if it be decided by the board, after such hearing, that the benefits as aforesaid will not equal such estimated cost, then said board shall proceed no further with such improvement under said resolution.”

This identical provision was a part of a statute in force in 1902, with reference to the construction of sewers in the city of Indianapolis, and its force and effect were fully considered by the Supreme Court in the case of Edwards v. Cooper (1906) 168 Ind. 54, 79 N. E. 1047. In that case the court held in effect that the performance of the acts therein specified were conditions precedent to a valid assessment, using the following language in the course of its opinion:

“It does not therefore admit of question that the provisions of the statute concerning the entering of findings as to the bounding of the district, and as to the benefits being equal to the estimated cost, are in the clearest degree mandatory. They, in many instances, constitute the only check which the taxpayer has against the exercise of arbitrary and oppressive power in those particulars. When a record is presented in which it appears that the board has utterly failed to observe these fundamental requirements. It must be affirmed that there is a want of power to fix an assessment.”

We conclude that said second charge in the complaints, when taken in connection with the other allegations thereof, if proved, entitled appellants to relief from the assessments in question. It does not follow, however, that they will escape the payment of their just proportion of the cost of said improvement, as section 8725, Burns' Supp. 1921, contains the following provision:

“In case of such defect supplementary proceedings of the same general character as those hereinbefore described may be had to correct or supply the same.”

In the case last cited, the court held that such an enactment was valid and remedial in its nature, and that similar provisions had been held to extend to jurisdictional matters. It thus appears that such omissions, if they are...