68 Ind. App. 290 | Ind. Ct. App. | 1918
The thirteen appellants herein are the heirs of one Benjamin F. Buckingham, deceased, and they instituted this action against appellee to enjoin the sale of a tract of land for the collection of a special assessment levied thereon in a street improvement proceeding.
The complaint discloses the following facts: Appellants own land in Union City. A public street of said city, known as the Union City and Winchester Pike, runs diagonally across their land from north
Under the supervision of the common council Oak street was improved by paving. The cost of paving that part of Oak street representing the junction of two streets was paid by the city. Appellants’ tracts of land were not assessed separately; but the sum of $570.80 was levied on both tracts, as if the two in reality constituted a single tract. Appellants ask that the court enjoin the sale of the north tract only. The following diagram will aid in understanding the averments of the complaint.
When levying these special assessments the common council is exercising the power of taxing, and is exercising that power in a very special way. Naturally, therefore, the plan suggests the need for a special tax district.
But appellee contends that, regardless of other considerations, this action must fail (1) because it is a collateral attack on the decision of the common council; (2) because the landowner had the right of appeal to the circuit court; and (3) because of the law of estoppel.
Every administrative officer in the discharge of his daily duties must determine for himself the facts on which he acts and must construe and apply the law. Nevertheless, where there is no rigid of appeal his decisions are subject to review by the courts when attacked collaterally. To hold otherwise would be to clothe a ministerial officer with power to inflict upon the citizen gross injustice and oppression by perverting the law and distorting the facts. Dorn v. Backer (1874), 61 N. Y. 261; Matter of New York Catholic Protectory (1879), 77 N. Y. 342; Beardslee v. Bolge (1894), 143 N. Y. 160, 38 N. E. 205, 42 Am. St. 707. The same rule is applicable to administrative boards and commissions, and to such governmental agencies as common councils of cities, when acting in an administrative capacity.
(2) On appeal to the circuit court the only question that may be reviewed is the amount of the assessment. To avail himself of the benefit of an appeal to the circuit court a landowner must admit, at least for the purpose of the appeal, that his land is liable to be assessed for some amount. As to lands not liable to be assessed, the right of appeal is expressly denied. §8716, supra. In the case at bar the only remedy is by injunction.
The judgment is reversed; and the trial court is directed to overrule'the demurrer.
Note. — Reported in 120 N. E. 422. Liability of abutting owner to pay assessments for public improvements, 18 L. R. A. (N. S.) 1259, 29 L. R. A. (N. S.) 770. See under (3, 4) 28 Cyc 1123; (5) 28 Cyc 1185; (9) 28 Cyc 1183.