146 Ind. 125 | Ind. | 1896
This was an action by the appellant to enjoin the collection of a sewer assessment. The appellee City of Lebanon, having assigned, to the remaining appellees, contractors, all assessments for the construction of the sewer, filed in the court below her disclaimer to the appellant’s complaint. The other appellees filed their answer, in which they set out in full the proceedings of the city council for the con
The evidence was heard, and the facts found specially by the court. The findings so made show that all the proceedings for the construction of the sewer and the making of the assessments were, as is also admitted by counsel, in strict compliance with the provisions of the act approved March 8, 1889 (Acts 1889, p. 237), and the amendments thereto (Acts 1891, p. 323), for the making of street and alley improvements and the building of sewers, known as the Barrett Law. (Sections 1288-1299, Burns’ R. S. 1891.)
Many propositions are ably discussed in the elaborate briefs of counsel, as they were also in the oral argument, but we are of opinion that the only question that need be considered is, whether the common council had jurisdiction to enter into the contract for the construction of the sewer.
In Robinson v. The City of Valparaiso, 136 Ind. 616, which was also 'a case under the Barrett law, certain property,owners had sought to enjoin the collection of sewer assessments on account of the alleged defective construction of the sewer. It was there held, in accordance with the provisions of the statute, that an injunction might, in proper case, be had “upon the proceedings prior to the making of any such improvements.” It was, however, also held that “from the time that work begins under a lawful contract, vested rights attach; and the faithful completion of the work is placed by. the law in custody of the city authorities, chosen by the people and clothed with power to care for the common welfare;” but that if a property owner refuses to pay his assessment, and a precept is issued for its collection, an appeal may be had; on which appeal “all questions from the making of the contract to
It might be said, therefore, that, in the case at bar, the appellant not having brought her injunction proceedings before the making of the contract for the sewer, and there being provided a right of appeal in case a precept is issued for the collection of the assessment made against her, the present action cannot lie. And this would be true unless it could be shown that the common council was absolutely without jurisdiction to enter into the contract for the building of the sewer. And this, indeed, is what counsel for appellant contend for.
The basis of this contention is that by the act to reg.ulate sewer improvements in towns and cities, in force March 4, 1893 (Acts 1893, p. 332; sections 4273-4275, Burns' R. S. 1894), sewers are classified into local and general sewers; the cost of the former to be paid by the abutting property owners, and so much of the cost of the latter as exceeds the cost of a local sewer to be paid by the owners of all property benefited, including the abutting property. The act further provides that in making the assessments for local sewers or their equivalents, the town board or common council shall be governed by the law in relation to assessments for street improvements, except that the whole cost, including that for street and alley crossings, shall be assessed against the property owners; and that in assessing that part of the cost of a general sewer, over and above the cost of an equivalent local sewer, the board or common council shall be governed by the statutes relating to the assessment of benefits in the laying out of streets.
We are able to perceive nothing in the foregoing act that can affect the jurisdiction of the common council in letting the contract here under consideration. The
Counsel argue that by the act of 1893 the common council were required, before taking any steps towards the construction of the sewer, to submit the matter to the city commissioners for an appraisement of the benefits and damages to the property to be affected by the proposed improvement. Such a proceeding would be quite impracticable, and there is nothing in the act to justify counsel’s interpretation. The assessments cannot be made until the contract is let and it becomes known how much the work is to cost. Besides, it is plain, from the provisions of the statute, that the legislature intended only to provide a method by which the common council or town board should be guided in making assessments upon the property benefited by the work. In case of a local sewer, or its equivalent, the benefits are to be assessed on the abutting property, by the front foot, as in case of street improvements, except that the whole cost shall be assessed to the abutting property, and none to the city or town; while in case of a general sewer, such as that in the case before us, the excess of cost over the cost of a local sewer is to be assessed to all the property benefited,including the abutting property; and in making this last assessment the town board or com
The assessment in this case, as appears from the findings of the court, was made against each lot or part of lot benefited according to such benefits and to the fair proportion of the cost of the work. There is nothing to show that this end was not reached.in the manner provided by law; and we must presume that it was.
The judgment is affirmed.