173 Ind. 216 | Ind. | 1909
This was a suit by appellees against appellants to foreclose a lien arising out of an assessment made against appellants ’ property for the improvement of a certain public street in the city of Portland, Jay county, Indiana, a city of the fifth class. Appellants are property owners, against whom benefits were assessed on account of the improvement of said street, and appellees are contractors, to whom the contract for performing the work of improving the street was let by the common council of said city. The improvement of the street was made under and in pursuance of the provisions of an act of the legislature entitled “An act concerning municipal corporations,” approved March 6,1905 (Acts 1905, p. 219, §3767 et seq. Bums 1905). This act is commonly known as the one pertaining to incorporated towns and cities.
The complaint, among other things, sets out certain facts showing the adoption of an improvement ordinance by the common council of the city of Portland, and alleges various steps which were taken in the proceeding in relation to said street improvement, including the letting of the contract for the improvement and the date thereof, and shows the name of the street improved. The complaint fully discloses that the city civil engineer reported a preliminary assessment made against the property af
Each defendant separately demurred to the complaint for want of facts. The demurrers were overruled, and thereupon each filed an answer and a counterclaim. To each of these pleadings plaintiff successfully demurred for insufficiency of facts. Defendants refused to plead further, and elected to stand upon the demurrers. Thereupon the court rendered judgment against them upon their answers and counterclaims, and, after hearing the evidence, the court rendered judgment in favor of plaintiffs, in the sum of $277.09, and decreed a foreclosure of the lien. From this decree appellants appeal, and have assigned as errors the overruling of the demurrers to the complaint, the rulings of the court in sustaining the demurrers to the amended paragraph of the answers, and in sustaining the demurrers to the counterclaims or cross-complaints.
Counsel for appellants claim that the complaint is insufficient on demurrer, for the following reasons: (1) That it does not aver that appellants were the owners of the property abutting on said street; (2) it does not set out the proceedings of the council as to each step taken therein; (3) that it does not, in express terms, aver that after the acceptance of the work and allowance of final estimates the council delivered a certified copy of the assessment roll to the treasurer; (4) because it fails to aver that due notice was given for two weeks before the adoption of the necessity resolution; (5) that sections 108, 109 and 265 of the act of 1905 (Acts 1905, p. 219, §§8711, 8714, 8959 Burns 1908) are unconstitutional and void as being in conflict with article 1, §21, of the Constitution of Indiana, which provides that “no man’s property shall be taken by law without just compensation;” (6) that §8714, supra, is unconstitutional, for the further reason that it is in conflict with article 1, §12, of the Constitution of Indiana, which provides that ‘ ‘ all courts shall be open; and every man, for injury done him in his person, property or reputation shall have remedy by due process of law;” (7) that said section is also in conflict with the 14th amendment to the federal Constitution, because it denies the citizen the right to contest a lien on his property in the courts of the State. Other objections are urged, but we do not deem it necessary that they be set out, because, under §8714, supra, the complaint is not open to the objections urged against its insufficiency upon demurrer. By the provisions of §8714, supra, in an action to foreclose a street improvement lien arising out of proceedings had under said act, the plaintiff is very materially relieved of the burden which, under former statutes of a similar import, rested upon him, whereby he was required to disclose in his complaint all the material steps taken in respect to the street improvement in controversy. Said section, among other things, provides that “foreclosure suits may be instituted for
We are unadvised by counsel for appellants in what manner §§8711, 8714, 8959, supra, operate to permit property of a person to be taken without just compensation, in violation of article 1, §21, of the state Constitution.
By section 111 of the act of 1905 (Acts 1905, p. 219, §8716 Burns 1908) it is provided, among other things, that the board of public works (common council), in making assessments against each lot or parcel of land, shall, as soon as any contract for the improvement of any street or alley has been completed, cause to be made an assessment roll, which shall give the names of property holders and a description of the property abutting on and adjacent to the improvement which is liable to assessment under other sections of the act, which shall also give the total assessment
By §8714, supra, a property owner who has not signed a waiver is given the right, in a suit to foreclose the statutory lien, to contest the amount of his assessment, but is denied the right in such an action to controvert the question of special benefits, for the reason, undoubtedly, that he has, under the statute, been accorded the right to question such special benefits before the board of public works or the common council, as the ease may be. Certainly, in view of the provisions of this act, it is untenable to assert, as do appellants, that a property owner has not been given “his day in court” for the determination of the question in respect to the special benefits to his property arising out of a street improvement, for it will be noted that provisions are made for
The legislature, having lodged in the board of public works or the common council, the power to hear and determine the question in respect to special benefits, had the authority to provide that the decision by that body should be conclusive. Where there is an opportunity under the law to be heard before the body which makes the assessments, due process of law is afforded the property owner, and the legislature may provide that such hearing shall be conclusive, and such provision neither violates the federal nor the state Constitution. Hibben v. Smith (1903), 191 U. S. 310, 24 Sup. Ct. 88, 48 L. Ed. 195; Kizer v. Town of Winchester, supra; City of Fort Wayne v. Cody (1873), 43 Ind. 197; Anderson v. Baker (1884), 98 Ind. 587.
The answer of appellants, to which the demurrer was sustained, alleged, in substance, the adoption of the necessity ordinance for the improvement of Main street, from the east side of Corn alley to the east side of Grand street, in the city of Portland, by grading and paving
Under the counterclaim appellants alleged facts concerning the performance of the work; that it was not performed according to the contract; that there was fraud and collusion in the acceptance of the same between the contractors and the council; that each defendant and cross-complainant was damaged in the sum of $300 and each demanded that that amount be credited upon his assessment, etc.
It is manifest that the answers of appellants are insufficient in facts to constitute a defense to the action. The acceptance, after its completion, of the improvement by the common council in the manner prescribed by the statute, was conclusive upon the property owners so far as the character of the work done and materials used were concerned. In
There are no facts alleged in the answer which can be regarded as establishing fraud upon the part of the common council and the civil engineer. For the purpose of showing fraud, however, the pleader has resorted, not to facts, but has employed epithets and mere conclusions. Facts constituting fraud in a particular case must be set out in the pleading. Epithets and conclusions will not suffice. The demurrer to the answer was properly sustained. Stroup v. Stroup (1895), 140 Ind. 179, 27 L. R. A. 523; Burden v. Burden (1895), 141 Ind. 471; Lux, etc., Stone Co. v. Donaldson, supra, and authorities cited. In this latter case it is said: “There is no statement of any fact or facts constituting fraud on the part of the common council in adopting said report and accepting the work. The averment that the appellant combined and colluded with the city civil engineer and certain influential members of the common council amounts to nothing. It is not a charge of fraud. It states no facts constituting fraud. It adds nothing to the defense. Like the confederacy clause in an ancient bill in equity, it may be omitted without impairing the pleading.”
Appellants insist that under the facts alleged in their counterclaim they were entitled to recoup their alleged damages against the assessments levied upon their property. This contention is wholly untenable. Under the law their counterclaim was unwarranted. The facts therein alleged in no sense could be said to constitute a right of action against appellees in their favor. If they sustained damages, as they claim, nevertheless they were not entitled to set off such damages in this action against the
We have examined all the questions presented by the record, but find no error. The judgment is therefore affirmed.