Trimble v. McGee

• Decision Date: 19 November 1887
• Citation: 14 N.E. 83,112 Ind. 307
• Parties: Trimble and others v. McGee, Treasurer, and others.
• Court: Indiana Supreme Court

112 Ind. 307

14 N.E. 83

Trimble and others

v.McGee, Treasurer, and others.

Supreme Court of Indiana.

November 19, 1887.

Appeal from circuit court, Tipton county; Dan. Waugh, Judge.

Bell & Purdum, for appellants. R. B. Beauchamp and Gifford & Swain, for appellees.

Howk, J.

In this case the appellees demurred to the complaint of appellants, the plaintiffs below, upon the ground that it does not state facts sufficient to constitute a cause of action. This demurrer was sustained by the circuit court, and to this ruling appellants excepted, and, declining to plead further, judgment was rendered against them for appellees' costs. From this judgment the plaintiffs below have appealed to this court, and have here assigned as error the sustaining of appellees' demurrer to their complaint.

Appellants alleged in their complaint that on the ninth day of April, 1884, the then trustee of Wildcat township, of Tipton county, contracted with one George Russell for deepening, cleaning out, and removing obstructions from, ditch No. 39, partly in said township and partly in Cicero township, in such county, and also from ditch No. 40 in said Wildcat township, both of such ditches being public ditches therefore constructed, or partially so, for drainage purposes, under the laws of this state; that such ditches 39 and 40 were distinct and separate drains, constructed at different times and under different proceedings, and affected different lands, and the work so contracted for by such trustee with George Russell also affected different lands; that about 1,500 feet in length of ditch No. 39, included in the work and repairs done by the trustee of Wildcat township, was in Cicero township; that the entire work so caused to be done by such trustee was by him contracted for and let as a whole, in one contract, and as only one work, at one dollar per rod, and was paid for out of the general fund of Wildcat township, the amount so paid, as shown by the assessment hereinafter mentioned, being $1,177.10; that thereafter, on July 7, 1884, the then trustee of Wildcat township made an assessment of $675.10 against plaintiffs' lands and other lands, as shown by copy of such assessment therewith filed; that such assessment was also signed by the trustee of Madison township and the trustee of Cicero township, and was made without personal inspection of the lands assessed; that on August 4, 1884, a certified copy of such assessment was filed in the office of the auditor of Tipton county. The complaint then contains similar averments in regard to the making of an assessment of $502 against certain lands in the townships of Wildcat and Madison, which assessment was also signed by the trustee of Madison township, to reimburse the general fund of Wildcat township for the amount paid for work done, and repairs made, on said ditch No. 40, whereof the sum of $194.50 was assessed against lands in Wildcat township, and $307.50 against lands in Madison township; and that on August 5, 1884, a certified copy of such assessment for ditch No. 40 was filed in the office of the auditor of Tipton county. Appellants further averred that the county auditor had placed such ditch assessments upon the tax duplicate of Tipton county, and had delivered the same to the treasurer of such county, for collection as other taxes, at the time of the commencement of this suit; and that such treasurer was threatening to and would distrain and sell appellants' property for the payment of such assessments, if the same were not paid, and that the assessments so made for ditch No. 39 were apparent liens on their respective lands, and clouds upon their respective titles thereto, which ought to be set aside and removed; and that such assessments were illegal and void, and ought to be set aside, for a number of reasons, which were stated at length. Wherefore, etc.

Without first setting out appellants' reasons for claiming that the ditch assessments of which they complain were illegal and void, we will consider and decide the several questions in the case which have been presented and discussed by their counsel in their elaborate brief of this cause. It is first urged very earnestly, by appellants' counsel, that the statute under which the township trustee caused the work to be done, and under which the assessments were made, described in the complaint, is unconstitutional and void. It is manifest that the township trustee acted throughout, in the proceedings complained of, under and pursuant to the provisions of section 7 of an act approved March 8, 1883, entitled “An act to amend sections two, (2,) three, (3,) four, (4,) five, (5,) six, (6,) eight, (8,) and ten (10) of an act entitled ‘An act...