Town of Jasper v. Cassidy
| Citation | 102 N.E. 278,53 Ind.App. 678 |
| Decision Date | 24 June 1913 |
| Docket Number | No. 8,620.,8,620. |
| Parties | TOWN OF JASPER v. CASSIDY. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Dubois County; John L. Bretz, Judge.
Lizzie T. Cassidy appealed to the circuit court from an assessment of benefits made by the Board of Trustees of the Town of Jasper, and the town appeals from a judgment setting aside the assessment. Affirmed.
Bomar Traylor, of Jasper, for appellant. Horace M. Kean and Richard M. Milburn, both of Jasper, for appellee.
This case was transferred to this court from the Supreme Court. The appellee appealed to the Dubois circuit court from an assessment of benefits made by the board of trustees of the town of Jasper, Ind., against a lot owned by her in said town. From a finding and judgment in favor of appellee this appeal is prosecuted, and the only error assigned is that the court erred in its conclusions of law stated on the finding of facts made at the request of the parties.
[1] The appellant has not set out in his brief the finding of facts nor stated the substance thereof. Under the rules of this court and numerous decisions, the error, if any, is thereby waived. However, appellee in her brief has stated facts which, considered with those shown by appellant's brief, enable the court to know that the principal and controlling question in the case is whether the town board has power under the statute to order a street graded without otherwise improving it, and to assess the cost thereof against abutting property. The original declaratory resolution was passed by the board of trustees of the town of Jasper on June 21, 1909. Appellee appeared before the board, and duly remonstrated on the ground of (1) insufficient notice; (2) that her property would not be benefited, but would be damaged by the proposed grading to the extent of $125; (3) that the contract included work not contemplated by the declaratory resolution; (4) that the work was negligently done, and not completed according to specifications; (5) that the whole proceeding is void because there is no law authorizing the board to grade streets and assess the cost thereof to the abutting property, unless by the same proceeding the street is to be paved with some kind of modern paving material.
[2][3] The law of 1889 (Acts 1889, p. 237) authorized streets to be “graded and paved,” and it was held that the statute did not empower municipal authorities to pass and enforce an ordinance for the grading of a street without paving it, and charge the abutting property with the cost of such improvement. Taylor v. Patton, 160 Ind. 4, 66 N. E. 91. The foregoing decision is decisive of the question presented here unless subsequent enactments have changed the law. The Legislature is presumed to be acquainted with existing laws, and in legislating on any subject to have the same in view, and to take cognizance of the construction placed on any statute by the courts of last resort. 11 Sutherland on Statutory Construction (2d Ed.) §§ 255, 499; City of Rushville v. Rushville Natural Gas Co., 132 Ind. 575-581, 28 N. E. 853, ...
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