Weaver v. Templin

• Court: Indiana Supreme Court
• Writing for the Court: Elliott
• Citation: Weaver v. Templin , 113 Ind. 298, 14 N. E. 600 (Ind. 1887)
• Decision Date: 28 December 1887
• Parties: Weaver v. Templin, Trustee.

113 Ind. 298

14 N.E. 600

Weaver

v.Templin, Trustee.¹

Supreme Court of Indiana.

December 28, 1887.

Appeal from circuit court, Howard county; A. E. Paige, Judge.

Elliott & Kirkpatrick and Bell & Purdum, for appellant. Blacklidge & Blacklidge and O'Brien & Shirley, for appellee.

Elliott, J.

Templin, as township trustee, and assuming to act under the authority of section 7 of the act of 1883 relating to drainage, did work upon a public ditch, and levied an assessment upon lands benefited by the work. From an assessment laid upon his land Weaver unsuccessfully prosecuted an appeal to the circuit court.

The constitutionality of section 7 of the act referred to is challenged, but, in our opinion, unsuccessfully. So far as the provisions of that section vest a discretionary authority in township trustees to determine when repairs are necessary, they are unquestionably valid. The legislature has power to confer upon the officers of public corporations the authority to conclusively determine when repairs of streets, highways, drains, and the like are necessary, and this power may be exercised by the legislature without requiring notice to be given by the municipal authorities of the intention to order the repairs. It is obvious that some officer or body must be invested with this discretionary power, or else no substantial progress could be made, and confusion would result. If each particular assessment presented the question as to whether it was necessary or expedient to make repairs of public highways or drains, we might have not only various, but conflicting, decisions upon the same question. It has long been the rule that municipal authorities have power to determine when streets shall be improved or repaired, and there is no reason why this settled general principle should not apply to public drains. The question as to the necessity or expediency of repairing a public drain is not one to be tried in judicial proceedings, but is one committed solely to the discretion of the officer designated by law, so that, if it were conceded that the statute does not provide for a trial of that question, or for notice to enable the land-owner to meet it, the concession would not affect the validity of the law. It has been held in very many analogous cases that a discretionary power of this nature may be conferred upon public officers, and that, when so conferred, courts cannot control its exercise. Leeds v. City, 102 Ind. 372, 1 N. E. Rep. 711; Ricketts v. Spraker, 77 Ind. 371-379;City v. Mahan, 100 Ind. 242;City v. Cody, 43 Ind. 197;Mayor v. Roberts, 34 Ind. 471;Macy v. City, 17 Ind. 267;Smith v. Corporation, 20 How. 145;Davis v. Mayor, 1 Duer, 451; 2 Dill. Mun. Corp. (3d Ed.) 686. The principle which we here assert was affirmed in a drainage case. Anderson v. Baker, 98 Ind. 587. The authority conferred upon the circuit court, on appeal, to determine the “cost of such repairs and removal of obstructions,” includes the authority to determine whether the assessment which the appeal assails was made to defray the cost of repairs and removal of obstructions. This conclusion is supported by at least two reasons: First, the township trustee had authority, under the act of 1883, to make repairs and remove obstructions, and, if he did other work, he transcended his authority, and acted without jurisdiction; second, the cost of removing obstructions and making repairs necessarily requires an investigation into the character of the work done, since without such an investigation it cannot be determined for what work the land can be assessed. It is only necessary to say of the first proposition that the township trustee, in proceeding under the statute, exercised a mere naked statutory power, and, if he transcended the authority conferred, he acted beyond his jurisdiction; and where he does so act he cannot create a valid lien against the property of the land-owner. Of the second proposition it is enough to say that the court cannot determine what the repairs cost until it has first determined whether the work done constituted repairs, or was an enlargement or improvement of the drain. No step can be intelligently taken without first determining what the work was, and whether it was within the statute.

It is well settled that in cases of this character the legislature may prescribe what the notice shall be, and how it shall be given. Although notice of some kind is required, preparatory to a final assessment of benefits, it rests with the legislature to determine what it shall be. The statute under immediate examination does provide for notice, and does give an aggrieved land-owner an opportunity of securing a judicial hearing, for it confers upon him a right of appeal. Even if it did not provide for notice prior to the appeal, it would be valid. The principle which rules here was thus stated in Flournoy v. City, 17 Ind. 169: “The stage of the proceedings at which that hearing shall take place; the manner, in short, in which the cause of a party shall be got before the judicial tribunal, so that it is not an unreasonably inconvenient and embarrassed one,-rests with the legislative power.” This principle has been asserted and applied in other cases. Ray v. City of Jeffersonville, 90 Ind. 567;Railroad Co. v. Connelly, 7 Ind. 32. In very many decisions, extending over a period of nearly 30 years, it has been held that municipal corporations may make improvements and repairs of streets without notice, and that the legislature may declare what questions shall be tried on appeal. City v. Imberry, 17 Ind. 175;Board v. Silvers, 22 Ind. 491;Palmer v. Stump, 29 Ind. 329;City v. Cody, supra; Taber v. Ferguson, 109 Ind. 227, 9 N. E. Rep. 723, and cases cited; Taber v. Grafmiller, 109 Ind. 206, 9 N. E. Rep. 721.

There has been, therefore, a practical exposition of the constitution by the people, the legislature, and the judiciary; and in such a case as this, even had there been grave doubt at the outset, this practical construction has now the effect of a positive rule. Board v. Bunting, 111 Ind. 143, 12 N. E. Rep. 151; Bruce v. Schuyler, 4 Gilman, 221;People v. Board, 100 Ill. 495;Rogers v. Goodwin, 2 Mass. 475;Stuart v. Laird, 1 Cranch, 299;Minor v. Happersett, 21...