187 Ind. 541 | Ind. | 1918
— Appellee was the owner of certain lots and parcels of land abutting on a part of Thirty-Fifth street in the city of Indianapolis, which was improved by paving at the expense of abutting property under the provisions of an act concerning municipal corporations, approved March 6, 1905. The general contract .for the improvement included the making of certain connections between the gas mains and the water mains located in the street improved with the property line of the abutting property, and the assessment against the property of appellee as shown by the final assessment roll, approved by the board of public works of the city included the cost of such connections made to the property of appellee.
The Marion Superior Court on appeal held that the board of public works fiad no power or authority to include the cost of making water and gas connections in the assessment for the street improvement against the abutting lots of appellee, and reduced the assessments against the various lots in an amount equal to the assessment against each on account of the water and gas connections.
Appellant filed its motion for a new trial alleging that the decision of the trial court was not sustained by
The question here presented rests upon the validity of certain city ordinances passed in 1906, 1907, and 1915.
It is shown by the record herein that appellee owned five lots abutting on Thirty-Fifth street, which had been improved by paving, and that the hearing on the primary assessment roll wa§ held on October 2, 1916; that an assessment for water connections was made in the sum of $18.75 for each of three lots, $21 for two connections to another, and $55.50 for three connections to the other, while each lot was assessed $5.50 for a gas connection. It appears that the Citizens Gas Company was operating under a franchise contract dated August 30, 1905, which provides that all service pipes connecting with its mains shall-be placed and located at such points and locations as shall meet the approval of the owner of the property whose premises, are to be connected by such service pipes and lines to property lines of streets and alleys, and that such service pipes and curb boxes shall be put in at the expense of the company to the property line. It also provides that the company shall provide all meters and safety devices free of charge to each consumer of gas, but may require a deposit of not to exceed $5 for each meter furnished, which deposit so required was to be held and returned to the consumer upon surrender by him of the meter in the same condition as when installed, natural wear excepted. The gas company operating under this franchise maintained a pipe line on the street upon which the property of appellee abutted and for the improvement of which such property was assessed. The cost of making connections between gas mains and the property line of the lots was included in the assessment as hereinbefore stated. It is further shown that at and
“The company shall furnish to the citizens of the city upon the several streets and avenues in which pipes and watercourses may be laid, and in such localities off the same as the citizens may conduct the water to, such quantities of water as they may desire.”
In 1906, the city passed an ordinance providing that gas and water companies maintaining mains in any street which should be permanently improved by pav-' ing should be required at the expense of such companies to make the connections between their mains and the property lines of the abutting lots after the contract for the improvement was let. The ordinance also provided that the water company, in such case, should keep an account of the cost of the water connections so made with each abutting property, and that, upon water service being furnished through such connection, it might charge and collect from the owner of such property the cost of such connection before furnishing water service. The ordinance made no such provision with reference to the gas company; the probable reason for the distinction being that the franchise contract under which the gas company was operating required such company to bear the expense of the connections between its street mains and the property line of abutting lots, while the fran
In 1907 another ordinance upon the same subject was passed by the city council. By this ordinance the duty to make connections with sewers, water mains, gas mains and other like public conveniences, and to bring them within the curb line, was imposed upon the owners of property abutting upon streets about to be permanently improved by paving. The ordinance required that all such connections be made by the lot owners within thirty days after the adoption by the board of public works of the permanent improvement resolution declaring the intention of making such improvement, including such connections at the expense of abutting property, and that all connections not made by the owner should be included in the general contract for the street improvement and the cost thereof assessed against the abutting property benefited thereby. Thisordinance repeals all former ordinances within its purview.
In 1915 the city council passed another ordinance on the subject by which it was made the duty of an owner of property abutting on a street about to be improved to make' service connections with sewers and water mains within thirty days after the adoption of a resolution ordering such improvement. This ordinance requires the gas company having or constructing a main on such street or alley to lay a service line from such main to the property line of each and every property abutting on the street or alley about to be permanently improved. In other respects the ordinance is very similar to that of 1907, except that, where connections are made by the contractor as a part of the improvement, it provides that the costs of putting in gas service pipes shall be charged against the gas company, and that the costs of putting in service pipes to sewers, water
The record discloses that the ordinance of 1915 was held invalid by the Public Service Commission of Indiana as bqing unreasonable, and that the assessments complained of were made under the provisions of the ordinance of 1907.
In the recent case of City of Angola v. Croxton (1916), 185 Ind. 250, 112 N. E. 385, this court, in discussing the power of the city of Angola to provide by ordinance that all persons owning property fronting and abutting on West Maumee street, which the city contemplated improving by paving, should be required to lay connecting pipes from the water and sewer mains in the street to the inside of the curb line of their re
Appellee’s contention that this is an unreasonable ordinance, in that it is a blanket ordinance covering all street improvements, is without force. No special reason is shown why the ordinance cannot apply equally as well to one street as to another. The ordinance imposes the duty upon the board of pfiblie works of adopting an improvement resolution in which it also declares its in
In view of what has been said, it is evident that the decision of the trial -court is contrary to law and that
Note. — Reported in 118 N. E. 356. Municipal corporations: powers, how conferred, 28 Cyc 258; exercise of powers, method, 28 Cyc 275. See under (7) 28 Cyc 372; (8) 28 Cyc 919; (10) 40 Cyc 782.