Zorn v. Warren-Scharf Asphalt Paving Co.

• Decision Date: 23 April 1908
• Docket Number: No. 5,827.,5,827.
• Citation: 42 Ind.App. 213,84 N.E. 509
• Parties: ZORN v. WARREN-SCHARF ASPHALT PAVING CO.
• Court: Indiana Appellate Court

42 Ind.App. 213

84 N.E. 509

ZORN

v.WARREN-SCHARF ASPHALT PAVING CO.

No. 5,827.

Appellate Court of Indiana.

April 23, 1908.

Appeal from Superior Court, La Porte County; Chas. H. Truesdell, Special Judge.

Modified opinion.

For former opinion, see 81 N. E. 672.

Jas. F. Gallaher, for appellant C. R. Collins and J. B. Collins, for appellee.

MYERS, J.

On April 11, 1902, appellee brought this action to foreclose an alleged street paving assessment lien against appellant's property. The assessment was made under the act of March 8, 1889. (Acts 1889, p. 237, c. 118), and amendments thereto known as the “Barrett Law.” The complaint is in six paragraphs, which relate to as many separate pieces of property. Nine paragraphs of answer and two paragraphs of reply were filed. The first paragraph of answer and the first paragraph of reply were general denials. A demurrer was sustained to all the affirmative paragraphs of answer except the seventh. A demurrer to the second paragraph of reply was overruled. Upon the issues thus formed the cause was tried by the court, and finding made in appellee's favor for $2,027.43, and a decree entered accordingly. Separate errors are assigned on the action of the court in sustaining appellees demurrer to the several paragraphs of answer, and in overruling appellant's demurrer to the second paragraph of reply, and in overruling appellant's motion for a new trial. We will not take the space to discuss separately these various assignments of error, as the controlling question is one of power in the council to make the assessment, and is presented by uncontroverted facts, which, for the purpose of a decision of this cause, may be stated as follows:

On January 23, 1899, the common council of the city of Michigan City, by a two-thirds vote of all the members thereof, passed a resolution declaring a necessity to exist for the improvement of certain streets in said city “by paving and curbing the same with good, hard burned paving brick, laid on a base of crushed stone and stone curbing.” It was at the same time “further resolved” to improve these streets “by paving with sheet asphalt on a base of concrete, and stone curbing.” At the same time it was “further resolved” to improve the same streets “by paving with asphalt block on a base of crushed stone, and stone curbing.” The clerk, as directed by said council, gave notice of the proposed kinds of improvement, as set out in the resolution, and a hearing was had. Afterwards, on March 18, 1899, by a two-thirds vote of all the members of said council, two ordinances were passed; one that the streets be improved by paving with sheet asphalt on a base of concrete, the other providing for the improvement of the same streets by paving with hard burned paving brick on a base of concrete Each ordinance ordered that the clerk advertise for bids. As directed, the clerk advertised for bids for the improvement of said streets by paving the same with sheet asphalt, and also by improving the same with good, hard burned paving brick. In response to the advertisement, on April 24, 1899, a number of bids were received, two of which were introduced in evidence. The bid of R. F. Conway & Co. proposed to construct a combined curb and gutter at 45 cents per lineal foot; to pave with asphalt, as per specifications, at $1.45 per square yard; and to do the grading at 20 cents per cubic yard. The bid of the Warren-Scharf Asphalt Paving Company was to make a combined curb and gutter at 60 cents per lineal foot; to pave with asphalt,as per specifications, at $1.75 per square yard; and to do the grading at 30 cents per cubic yard. The proposals were submitted to a committee of council, who on May 3, 1899, reported, recommending the acceptance of the bid of Conway & Co., and on the same date, the council, by resolution, accepted this bid, and instructed the mayor to enter into a contract for said improvements with that company. Conway & Co. did not enter into a contract, did not file any bond, and did no work on the streets. On November 27, 1899, the council adopted a resolution reciting that whereas the firm of Conway & Co. had failed and refused to proceed with the improvement under the contract awarded to that company on May 3, 1899, and “whereas there prevails among the owners of the real estate fronting on the several lines of said improvements a general opinion that the material proposed to be used by said R. F. Conway Company is of inferior or at least doubtful quality, and a large number of said owners have requested that in the improvement of said streets as contemplated in the specifications adopted therefor only the best Trinidad Lake asphalt be used, even though the cost thereof be slightly greater than of inferior or doubtful quality, and whereas the only proposals submitted to this council to make said improvement with Trinidad Lake asphalt was submitted by the Warren-Scharf Asphalt Paving Company, now, therefore, be it resolved by the common council of the city of Michigan City, first, that the vote and action of this common council awarding the contract to improve and pave Spring, Pine, and Wabash streets in said city to R. F. Conway Company of Chicago, Illinois, be and the same is hereby, reconsidered; second, that the several propositions of the Warren-Scharf Asphalt Paving Company for improving said Spring, Pine, and Wabash streets by grading, curbing, and paving the same with stone and cement concrete, and combined curb and gutter and genuine Trinidad Lake asphalt according to the plans, specifications, and profiles prepared by the city civil engineer and adopted by this common council and now on file in the city clerk's office, which propositions were submitted to this council at the same time as those of the R. F. Conway Company aforesaid, be, and the same are hereby, severally accepted, and the contracts for making said improvements are hereby severally awarded to said Warren-Scharf Asphalt Paving Company.” Provided said company shall within 10 days enter into a contract to do such work “as provided in said specifications, and with Trinidad Lake asphalt,” and complete the same by a day named and file a specified bond. The mayor was also directed to enter into a contract on behalf of the city with said paving company. In accordance with this resolution, on November 28, 1899, the mayor entered into a contract with appellee. On September 24, 1900, the final estimate on Spring street, and on October 8, 1900, the final estimate on Pine street was reported by the city engineer of said city, and the same was referred to the committee on streets and alleys, and notice ordered and given to the property owners whose property abutted on said improvement, and a hearing had on November 26, 1900. On this last date said committee reported to council that said contractor had complied with and completed said improvement in accordance with the contracts; that the property described had been benefited, and recommended that the improvement be accepted, and that the estimate of the engineer be adopted and confirmed. On November 26, 1900, the report of the committee and the final estimate and the assessments against the property on Pine street were by resolution approved and confirmed, and upon the filing of waivers by property owners same to be placed upon the tax duplicate, etc. On January 17, 1901, said council by resolution adopted and approved the final estimate and the assessments as reported by the committee, and assessed the several amounts against the abutting property, etc. On January 13, 1902, said council by resolution reconsidered its vote of January 17, 1901, and the assessments then levied, and referred the matter back to the committee, and ordered that the committee meet on January 31, 1902, to hear objections to reassessments. On this last date the committee reported to council corrected assessments against the property of appellant, and on February 10, 1902, the amended assessments so reported were adopted and approved by said council, and are the assessments sued on. Appellee in the performance of its contracts began work on Spring street the latter part of June, and on Pine street in July, 1900, and completed the work on Spring street September 20 and Pine street October 4, 1900. On July 11, 1900, and before work had actually begun on Pine street, appellant caused notice to be served on appellee and said city, notifying them that he was the owner of the real estate described in the complaint herein; that it abutted on that portion of Spring and Pine streets proposed to be improved; that he was not acquiescing in said improvement; that he would not pay any amount assessed against said real estate on account of said improvements, and denied any authority to create a lien thereon for the cost thereof, because the contract between appellee and said city was void, for the reason that on May 3, 1899, after advertising for bids for the work of improving said streets the common council of said city accepted a bid other than that of appellee to make said improvements, and that the contract with appellee was entered into thereafter without advertising and submitting the proposed improvement for bids as by the statutes of Indiana required; that the contract provides for the keeping of the improvementin repair for a certain number of years, and because the cost of the proposed improvement was to be assessed against the abutting property per front foot, regardless of benefits.

The foundation of this action is the assessment. Lewis v. Albertson, 23 Ind. App. 147, 158, 53 N. E. 1071. The assessment is conclusive against a collateral attack (Hibben v. Smith, 158 Ind. 206, 62 N. E. 447), unless the common council has neglected to comply with some statutory provision amounting to a condition precedent to the right to exercise its authority to make the improvement and assess the costs thereof against the abutting property. Such a condition is a check...