Storms v. Stevens

• Decision Date: 23 November 1885
• Docket Number: 12,201
• Citation: 3 N.E. 401,104 Ind. 46
• Parties: Storms v. Stevens
• Court: Indiana Supreme Court

3 N.E. 401

104 Ind. 46

Storms v. Stevens

No. 12,201

Supreme Court of Indiana

November 23, 1885

From the Huntington Circuit Court.

The judgment is affirmed, with costs.

J. C Branyan, M. L. Spencer, R. A. Kaufman and W. A. Branyan, for appellant.

J. B Kenner, J. I. Dille, W. G. Sayre and J. T. Hutchens, for appellee.

OPINION

Zollars, J.

A ditch was constructed by order of the board of county commissioners, under R. S. 1881, section 4285, et seq. The auditor sold the shares or allotments of work as provided by section 4303. Appellant bought the share allotted to appellee, and received from the county surveyor the certificate as provided by section 4305. He brought this action in the court below to enforce against appellee's land the lien created by sections 4317 and 4305. He contends that this kind of an action may be maintained. Appellee contends that it can not; that the statutory mode of collection is, by placing the amount upon the tax duplicate to be collected as other taxes are collected, and that this mode is exclusive of all others. If the statute does provide a mode of collection, that is exclusive, and must be pursued. The statute clearly creates a new right. Where a statute creates a new right and prescribes a mode of enforcing it that mode must be pursued to the exclusion of all other remedies. Such has been the settled law in this State for more than sixty years, and such is the law elsewhere. Lang v. Scott, 1 Blackf. 405; Butler v. State, 6 Ind. 165; Martin v. West, 7 Ind. 657; McCormack v. Terre Haute, etc., R. R. Co., 9 Ind. 283; Toney v. Johnson, 26 Ind. 382; 1 Wait's Actions and Defences, p. 42.

The enunciation of this rule of law does not dispose of the case before us. The question yet remains as to whether or not the statute prescribes a mode of collecting the amount of the certificate held by appellant. The solution of that question depends upon the proper construction to be placed upon section 4305 of the act. That section is as follows:

"It shall be the duty of the county surveyor, on being notified by any contractor that his job is completed, to inspect the same; and if he find that it is completed according to contract, he shall accept it, and give to the contractor a certificate of acceptance, stating that said job, share, or allotment is completed according to the specifications of said ditch. And if any share or allotment has been sold to a person not the owner of the land assessed therefor, he shall, in addition, state the amount due the contractor for constructing the same from the owner of the said land; which certificate shall be a lien upon the land assessed for such share or allotment, and shall be due and payable immediately by the owner of the land; and such certificate, if not paid on demand, shall draw interest until paid. And if the allotment sold belongs to a non-resident of the county, the auditor shall state such fact when he offers it for sale. And when the county surveyor accepts it, and issues his certificate of acceptance, he shall file with the county auditor a copy thereof; whereupon said auditor shall charge the amount mentioned in said certificate on the tax duplicate against the land assessed with such allotment, to be collected as other taxes are collected, together with six per cent. for the holder of the certificate after the same becomes delinquent; and when collected, it shall be paid to the person holding the certificate, on an order of the auditor."

The contention of appellant's counsel is, that the above section provides no mode of collecting the amount of the certificate given for the work of the shares allotted to residents of the county, and that hence the lien may be enforced in the manner here attempted. This contention is based upon the language of the section, preceding the mention of the allotment to non-residents of the county, and, particularly, upon that portion which provides that the certificate shall be due and payable immediately, and shall draw interest after demand. It is also argued, that the subsequent portion of the section has reference only to the collection of certificates given for the work of shares allotted to non-residents of the county. Their position, therefore, is, that the certificates given for the work of shares allotted to residents of the county, must be collected by suit, and that the certificate given for the work allotted to non-residents of the county must be collected as taxes are collected. The awkward manner in which the pronoun "it" is used in the latter part of the section of the statute, is calculated, at first blush, to confuse, but the manner of its use is not such as to warrant the conclusion that only copies of certificates given for the work of shares allotted to non-residents of the county, are to be filed with the county auditor by the county surveyor. The section must be considered as a whole, in order to ascertain the intention of the Legislature in its enactment.

It is made the duty of the county surveyor to inspect the work, and if he finds it properly completed, to accept it. He does not accept the allotment. With that he has nothing to do; and hence the provision in the latter part of the section "and when the county surveyor accepts it, and issues his certificate of acceptance, he shall file with the county auditor a copy thereof," does not refer to the allotment to non-residents of the county, but has reference to the acceptance of the work as provided in the first part of the section, including the work of shares allotted...