The Barber Asphalt Paving Company v. Edgerton

• Decision Date: 14 October 1890
• Docket Number: 15,560
• Citation: 25 N.E. 436,125 Ind. 455
• Parties: The Barber Asphalt Paving Company et al. v. Edgerton et al
• Court: Indiana Supreme Court

25 N.E. 436

125 Ind. 455

The Barber Asphalt Paving Company et al. v. Edgerton et al

No. 15,560

Supreme Court of Indiana

October 14, 1890

Petition for a Rehearing Overruled Dec. 18, 1890.

From the Whitley Circuit Court.

Judgment reversed, with directions to sustain the demurrers to each paragraph of the complaint, and for further proceedings not inconsistent with this opinion.

H. C Hanna, H. Colerick and W. S. Oppenheim, for appellants.

A Zollars and J. K. Edgerton, for appellees.

OPINION

Coffey, J.

On the 14th day of May, 1879, a petition praying that a certain street in the city of Fort Wayne be ordered paved, was presented to the common council of the city of Fort Wayne. Atter the matter had been referred to and reported upon by several committees, and after various objections and remonstrances on the part of those opposed to the improvement, the common council adopted the following resolution:

"Be it Resolved, By the common council of the city of Fort Wayne (two-thirds of all members thereof concurring), that Wayne street from Calhoun street to Harrison street be graded and paved with Trinidad asphalt pavement to a width of forty-two feet, and from Harrison street to College to a width of thirty-two feet, and that the stone curbing on both sides of said Wayne street between said points be reset to the width of the pavement.

"And it is further Resolved (This council hereby declaring such improvement necessary), that the cost of expenses thereof, including pay of inspector, be assessed against, and collected according to the provisions of chapter 118, of the General Assembly of the State of Indiana, approved March 8th, 1889, and that said improvement shall be made under the supervision and to the satisfaction of the city civil engineer and the common council, and in accordance with the plans and specifications on file at the office of said engineer.

"And be it further Resolved, That the city civil engineer set the proper stakes and advertise for two days in each of three successive weeks in the Fort Wayne Daily Journal, that sealed proposals will be received by this council at a meeting to be held on the 9th day of July, 1889, for the execution of said work, and give notice to the property-owners accordingly."

After the above resolution had been adopted, the city clerk published a notice to the effect that a resolution had been passed for the paving of the street with asphalt, and that objections might be made to a committee of the common council on a day named.

Other remonstrances and objections were filed with the committee, and on the 27th day of August, 1889, a contract was entered into between the city and the asphalt paving company, whereby the latter agreed to construct the work according to the plans and specifications then on file. After the contract was let there seems to have been a race between the contractor and those opposed to the work, the former being anxious to begin work before an injunction suit should be commenced, while the effort of the latter was to begin suit before the contractor had begun work.

For all practicable purposes it may be considered as though the commencement of the work and the institution of the injunction suit were contemporaneous events. An injunction suit was instituted, but no temporary order restraining the execution of the work was asked for or obtained until the work was completed, and until the contractor sought or was threatening to enforce payment of the assessments made against the abutting property.

At the time the appellees obtained a temporary restraining order, and upon the final hearing, they obtained an injunction, enjoining the appellants from collecting such assessments, from which decree this appeal is prosecuted.

The important and vital question in the case, and around which all the other questions cluster, hinges upon the construction to be given to section 2 of an act approved March 8th, 1889 (Acts of 1889, p. 239; Elliott's Supp., section 813).

Section 1 of the above statute confers upon the common council of cities and the boards of trustees of incorporated towns, the power to improve the streets and alleys of such cities and towns upon a petition of the owners of two-thirds of the whole line of lots to be benefited by such improvement.

Section 2 provides that "Whenever cities or incorporated towns subject to the provisions of this act shall deem it necessary to construct any sewer, or make any of the alley or street improvements in this act mentioned, the council or board of trustees shall declare by resolution the necessity therefor, and shall state the kind, size, location, and designate the terminal points thereof, and notice for ten days of the passage of such resolution shall be given for two weeks in some newspaper of general circulation published in such city or incorporated town, if any there be, and if there be not such paper, then in some such paper printed and published in the county in which such city or incorporated town is located. Said notice shall state the time and place when and where the property-owners along the line of said proposed improvement can make objections to the necessity for the construction thereof."

Section 3 provides for the apportionment of the cost of such improvement.

Section 5 confers upon the board of trustees of any incorporated town, and the common council of a city, the power to order and make improvements by a two-thirds vote without any petition therefor.

Section 6 provides for the final estimate of the cost of such improvement, and section seven provides for notice and the hearing of objection to such estimates, made by or on behalf of the property-holders affected thereby.

Section 8 provides for issuing bonds to meet assessments, and declares the same to be a lien upon the property benefited.

Section 10 prescribes the mode by which the propertyholder may avail himself of the time allowed by the law within which the assessments may be paid.

The contention of the appellees is, that under the provisions of section two, supra, in order to give validity to the action of the common council of the city of Fort Wayne, in ordering the improvement in question, it was necessary to first pass a resolution declaring the necessity for such improvement, and that no valid order for such improvement could be made until those interested had been brought in by the notice therein provided for, and had an opportunity to be heard as to the necessity for the construction of such work.

On the other hand, it is contended by the appellants that the resolution before us performed the double purpose of declaring the necessity for the improvement in question and of ordering the same to be made, and that the statute does not require two separate resolutions.

Underlying all the rules for the construction of statutes is the cardinal and general one, that in construing a statute the court will seek to discover and carry out the intention of the Legislature in its enactment.

In the search for that intention the court will look to each and every part of the statute; to the circumstances under which it was enacted; to the old law upon the subject, if any; to other statutes upon the same subject, or relative subjects, whether in force or repealed; to contemporaneous legislative history, and to the evils and mischiefs to be remedied. City of Valparaiso v. Gardner, 97 Ind. 1; Lutz v. City of Crawfordsville, 109 Ind. 466, 10 N.E. 411; Connecticut Mut. Life Ins. Co. v. Talbot, 113 Ind. 373, 14 N.E. 586; Mayor, etc., v. Weems, 5 Ind. 547; Maxwell v. Collins, 8 Ind. 38; Hedrick v. Kramer, 43 Ind. 362; State, ex rel., v. Denny, 67 Ind. 148; Taylor v. Board, etc., 67 Ind. 383; Prather v. Jeffersonville, etc., R. R. Co., 52 Ind. 16; Krug v. Davis, 87 Ind. 590; Hunt v. Lake Shore, etc., R. W. Co., 112 Ind. 69, 13 N.E. 263; Stout v. Board, etc., 107 Ind. 343, 8 N.E. 222; City of Evansville v. Summers, 108 Ind. 189, 9 N.E. 81; State, ex rel., v. Harrison, 116 Ind. 300, 19 N.E. 146; Middleton v. Greeson, 106 Ind. 18, 5 N.E. 755.

It seems to be the settled rule that statutes granting to municipal corporations powers which involve the imposition of burdens upon private property are to be strictly construed, and where such statute requires the doing of some particular thing, in its nature jurisdictional, as a condition precedent to the right to impose such burden, the failure to do the thing required will render the whole proceeding void. Niklaus v. Conkling, 118 Ind. 289, 20 N.E. 797; City of Madison v. Smith, 83 Ind. 502; Welty Law of Assess., section 319; Supervisors v. United States, ex rel., 71 U.S. 435, 4 Wall. 435, 18 L.Ed. 419; Mason v. Fearson, 50 U.S. 248, 9 HOW 248, 13 L.Ed. 125; Wheeler v. City of Chicago, 57 Ill. 415; Merritt v. Village of Portchester, 71 N.Y. 309; Merrick v. City of La Crosse, 17 Wis. 442; Dillon Munic. Corp. (2d ed.), section 639; Case v. Johnson, 91 Ind. 477; City of Logansport v. Dykeman, 116 Ind. 15, 17 N.E. 587; Hoyt v. City of East Saginaw, 19 Mich. 39.

It seems to be settled, however, that in matters of local improvement where jurisdiction over the whole subject is conferred upon a municipal corporation, with power to make local assessments for that purpose, any failure to comply strictly with any statutory requirement, not affecting the jurisdiction, will be regarded as a mere irregularity, and in a collateral proceeding will be disregarded. Jackson v. Smith, 120 Ind. 520, 22 N.E. 431; Montgomery v. Wasem, 116 Ind. 343, 15 N.E. 795; Ross v. Stackhouse, 114 Ind. 200, 16 N.E. 501; City of Elkhart v. Wickwire, 121 Ind. 331, 22 N.E. 342; Smith, etc., Co. v. Engle, 44 Iowa 265.

The resolution before us does declare the necessity for the improvement now in dispute in...