Wishmier v. State, ex rel. Dickey

• Decision Date: 20 September 1884
• Docket Number: 11,084
• Parties: Wishmier v. The State, for the Use of Dickey, Commissioner of Drainage
• Court: Indiana Supreme Court

97 Ind. 160

Wishmier v. The State, for the Use of Dickey, Commissioner of Drainage

No. 11,084

Supreme Court of Indiana

September 20, 1884

From the Hamilton Circuit Court.

Reversed with costs, with direction to the court below to sustain appellant's demurrer to the complaint and for further proceedings.

W Henderson and J. W. Robinson, for appellant.

D Moss, R. R. Stephenson, R. B. Beauchamp, G. W. Gifford and J Mettlin, for appellee.

OPINION

Hammond, J.

This action, commenced in the Tipton Circuit Court, reached the court below by changes of venue. It was a suit by the appellee against the appellant to enforce the lien, with attorney fees, of an assessment for drainage. The complaint was held good upon demurrer. Issues were joined and tried by the court and a finding and judgment rendered for the appellee. Appellant moved for a new trial, but his motion was overruled.

The proceedings to establish the ditch were had, and the present action was brought, under the act of April 8th, 1881 (Acts 1881, p. 397), prior to the amendments of 1883. Sections 4273 to 4284, R. S. 1881. Section 4277 provides, among other things, that the commissioner of drainage, charged with the execution of the work, "may, if he so determine, bring suit in the name of the State of Indiana, for his use as commissioner of drainage, in any court of competent jurisdiction, to enforce a lien upon any tract or tracts of land for the amount so assessed by him; and all judgments obtained in such cases may include reasonable attorney's fees for services in prosecuting the same, and shall be without relief from valuation or appraisement laws." The assessments here spoken of are those made by the commissioner charged with the execution of the work upon assessments of benefits to lands previously made by the commissioners of drainage, as confirmed by the court.

It is claimed by appellant that the act of the Legislature in question is void as being repugnant to the Constitution. It will be observed that the statute only authorizes the drainage of lands by assessments upon lands benefited by the work, where the public health will be improved, public highways benefited, or where the work is of public utility. Sections 4274-5, R. S. 1881. The power of the Legislature, in such cases, to authorize and provide for the drainage of wet and overflowed lands at the expense of those whose real estate is benefited by such work, has been fully recognized by this court. Anderson v. Kerns Draining Co., 14 Ind. 199; O'Reiley v. Kankakee Valley Draining Co., 32 Ind. 169; Chambers v. Kyle, 67 Ind. 206; Deisner v. Simpson, 72 Ind. 435.

The title of the act of April 8th, 1881, supra, is "An act concerning drainage." Appellant's counsel urge that the title is not sufficient to cover various provisions of the act, such as those for the appointment of commissioners of drainage, prescribing the mode of collecting assessments and authorizing judgments in such collection to include attorney's fees for prosecuting actions to enforce liens. Section 19, art. 4, of the Constitution of the State provides that "Every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title." It is only the subject of an act that must be expressed in the title. Matters properly connected with such subject are not required to be thus expressed. Thomasson v. State, 15 Ind. 449; Robinson v. Skipworth, 23 Ind. 311; Hingle v. State, 24 Ind. 28; Murray v. Kelly, 27 Ind. 42.

In the...