118 Ind. 119 | Ind. | 1889
The appellee’s counsel insist that there can be no appeal from the order of the board of commissioners directing a reassessment to pay the expense of constructing a
The controlling facts are embodied in the special finding, of which we make a synopsis : On the 1st day of May, 1884, a petition was filed praying for the construction of a free gravel road; notice was given, and judgment was entered directing the construction of the road and the assessment of benefits. On the 18th day of February, 1886, the auditor discovered that the benefits were insufficient to pay the expense of constructing the road, and called a meeting of the board of commissioners in special session for the 18th day of February, 1886. On that day the board convened and the appellants appeared and remonstrated against making any addition to the original assessment. The original assessment was $10,170.33 less than the expense of constructing the road, and to meet the deficiency forty-five per cent, was by the auditor added to the original assessment of benefits. The addition of the forty-five per cent, was made by the auditor previous to the meeting of the commissioners, was approved,
We are of the opinion that the auditor has no authority to increase an assessment beyond the sum ascertained and assessed as benefits in due course of law. Section 5096, R. S. 1881, must be construed as meaning that the auditor can only add to the assessment when it appears that the addition will not make the assessment exceed the benefits ascertained and reported in compliance with the statute. The auditor ■ can not determine the benefits, nor, indeed, any other purely judicial question. To hold otherwise would be to invest the auditor with power arbitrarily, without notice, and without viewers, to add to the burdens of the land-owners, and this would be to violate some of the plainest principles of constitutional law. If the auditor may add forty-five per cent, ■on his own motion, and without notice, he may, on the same theory, double the assessment. Certainly it was not contemplated that he should have any such power. It would be rank injustice to land-owners to concede him such authority, for it might well be that the assessment thus increased would greatly exceed the benefits to the land. It would, at all events, deprive the land-owners of the constitutional right to have benefits assessed by due process of law. It is ’ too well settled to admit of doubt that no greater sum than the benefit which accrues can be assessed against the land. Proceedings like these are only sustainable on the ground that the land receives a benefit equal to the assessment. Board, etc., v. Fallen, 111 Ind. 410 (420).
The question with which we are here concerned was not presented in Kirkpatrick v. Pearce, 107 Ind. 520. The court thus stated the question before it for decision: “ The case before us involves the question as to when the assessments become liens upon the lands assessed. Do they become liens at the time the final order is made by the county board con
In Kirkpatrick v. Pearce, supra, it is said: “ The action, of the auditor in placing the assessments upon the duplicate,, is ministerial,” and this can only be correct upon the theory that there is nothing for him to do beyond making a computation upon the basis supplied by the facts judicially ascertained and established, for he can not determine to what extent lands are benefited, nor what items shall enter into' the reassessment. In discussing the principle here involved, in the case of Vandercook v. Williams, 106 Ind. 345, Howk,, J., speaking for the court, said: “ In this case it is not claimed that the statute has invested the county auditor with the judicial power of the State, or has authorized such auditor to exercise any of the functions of the judicial department of the State government.. If the statute had invested the county auditor with judicial power, or had authorized such auditor to exercise judicial functions, in the discharge of any of the duties imposed on him by law, it is certain that the statute, to that extent, would have been unconstitutional and void. It has been uniformly held by this court that judicial officers only can exercise judicial powers or functions. Wright v. Defrees, 8 Ind. 298; Waldo v. Wallace, 12 Ind. 569; Columbus, etc., R. R. Co. v. Board, etc., 65 Ind. 427; Shoultz v. McPheeters, 79 Ind. 373; Gregory v. State, ex rel., 94 Ind. 384 (48 Am. Rep. 162); Elmore v. Overton, 104 Ind. 548 ; Pressley v. Lamb, 105 Ind. 171.” We apply
Judgment reversed, with instructions to sustain the appellants’ motion for a new trial, and for proceedings in accordance with this opinion.