Wray v. Fry

• Decision Date: 18 February 1902
• Citation: 62 N.E. 1004,158 Ind. 92
• Parties: WRAY v. FRY et al.
• Court: Indiana Supreme Court

158 Ind. 92

62 N.E. 1004

WRAY

v.FRY et al.

Supreme Court of Indiana.

Feb. 18, 1902.

Appeal from circuit court, Hancock county; J. E. McCullough, Judge.

Action by James W. Fry and others against Samuel A. Wray. Judgment for plaintiffs, and defendant appeals. Affirmed.Marsh & Cook, for appellant. Earl Sample, for appellees.

MONKS, J.

Appellees brought this action in November, 1899, to enforce the lien of an assessment for the construction of a sewer under the act of 1895 (Acts 1895, pp. 190-192), being sections 3597a-3597c, Burns' Rev. St. 1901. A trial of the cause resulted in a finding for appellees and a judgment thereon enforcing said lien. The errors assigned and not waived call in question the sufficiency of the complaint, the action of the court in sustaining a demurrer to appellant's answer and in sustaining a demurrer to appellant's cross complaint. It is insisted by appellant that the statute under which said sewer was constructed is “unconstitutional and void” for the reason “that section 1 of the act of 1895 provides that the total cost of any sewer shall be apportioned pro rata against the abutting property, without regard to benefits”; citing Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, and other cases. Section 3 of said act of 1895, being section 3597c, supra, provides that the provisions of the law known as the “Barrett Law,” “relating to the assessment for street improvements, shall govern the common council in making assessments for the cost of any local sewer or drain or the equivalent thereof.” The assessment was made by the common council under the provisions of the Barrett law, as required by said act of 1895. While the Barrett law provides what the prima facie benefits to the abutting property shall be, this is not conclusive. The power to assess the benefits to the abutting property is vested in the common council by section 4294, Burns' Rev. St. 1894, and section 4294, Burns' Rev. St. 1901, and that body has the right to adjust the assessments so as to conform to the actual special benefits accruing to the abutting property on account of the improvement. Hibben v. Smith (Ind.) 62 N. E. 447;Leeds v. De Frees (Ind.) 61 N. E. 930. The Barrett law, as interpreted by this court, is not obnoxious to any provision of the state or federal constitution. Martin v. Wills, 157 Ind. -, 60 N. E. 1021, and cases cited; Hibben v. Smith, 62 N. E. 447;Shank v. Smith, 61 N. E. 932;Leeds v. De Frees, 61 N. E. 930.

It is next urged that the complaint is insufficient, because: (1) “It shows that the assessment was made against the appellant according to the frontage, instead of actual benefits;” (2) “that there is no averment in the complaint that appellant was in fact benefited by said improvement.” It appears from the complaint that the amount assessed against appellant's lot was the same as that reported by the city engineer, determined by frontage. This does not show that the assessment was made arbitrarily, or that the same is illegal or void. Leeds v. De Frees (Ind.) 61 N. E. 930, 931. It was not necessary to aver in the complaint that appellant's said lot was benefited by said improvement. It must be presumed that the lot was benefited to the amount of the assessment when assailed in a proceeding to collect the same, such an attack being a collateral one. Leeds v. De Frees, supra; Shank v. Smith, supra. Appellant's answer and cross complaint each proceed on the theory that the assessment may be challenged in an action to collect the same on the ground that appellant's lot was not benefited by said improvement, and that the assessment was greater than the benefits received. These questions were for the determination of the common council, and, as that body had full and complete jurisdiction of the subject-matter and the person of the appellant, their action was conclusive against collateral attack. Leeds v. De Frees, supra; Shank v. Smith, supra; Hibben v. Smith, supra. It is alleged in appellant's answer “that at the time and place appointed to hear objections to said assessment appellant appeared before the committee of the common council, and presented his objections to the assessment against his said lot, and said committee, after hearing his objections, informed him that his said lot was not benefited by the construction of said sewer, and that they would so report to the council; that said committee failed to make such report, but, on the contrary, reported the approval of the assessment by the front-foot rule, as made by the engineer; that by the failure of said committee to report as aforesaid, this...