162 Ind. 667 | Ind. | 1904
The board of trustees of the town of Pendleton on June 27, 1901, by a vote of all its members, passed an ordinance for the improvement of one of the public streets of the said town, known as Pendleton street, by paving, curbing, and sidewalk paving. An advertisement that the contract for the work would be given to the best bidder on July 20, 1901, and asking proposals therefor, was published in a newspaper of the town, of general circulation, on June 28, July 5, July 12, and July 19, 1901.' July 19, 1901, a written’ remonstrance, signed by two-thirds of the resident owners of the whole line of lots bordering on that part of the street upon which the improvement had been ordered, was filed with the clerk of said board. On the same day the appellants herein, six in number, residents of said town of Pendleton, and own
No question was raised touching the sufficiency of the complaint, and an answer in two paragraphs was filed, one of which was a general denial, and the other a special plea alleging that the proceedings were taken under the act for the improvement of streets in towns, known as the Barrett law. Reply in denial of the special answer. At the request of the parties a • special finding of facts was made by the court, with conclusions of law thereon in favor of the appellees. The appellants excepted to each conclusion of law, and moved for a restatement of such conclusions and for a new trial. These motions were denied, and the rulings theron are assigned for error. The foregoing statement sufficiently discloses the grounds on which the decision of this cause must rest.
The statute under which the proceedings for the improvement of the street were taken provides that the board may cause the work to be done by contract given to the best bidder, after advertising for three weeks in some newspaper published within the town. §4288 Burns 1901, Acts 1889, p. 237. The act of March 4, 1899 (Acts 1899, p. 411, §4289a Burns 1901), which authorizes a remonstrance against such improvements, requires that the remonstrance be filed before the improvement is advertised
The other objection, that the -cost of the work was to be assessed by the front foot, without regard to the benefits to the several lots bordering on the improvement, is without merit. The ordinance must be read in connection with the law under which it was enacted. The assessment provided for was prima facie a fair and equitable one. The properly owner was not denied redress in any case whore such assessment might be unjust and oppressive.
It was said by this court in Taylor v. City of Crawfordsville, 155 Ind. 403, that “the statements in the declaratory resolution and the averments of the complaint, that the city will assess the total cost of the improvement against the abutting property, without reference to the question of benefits, and assess against the plaintiff’s property an amount largely in excess of the benefits, cannot avail in support of injunction. It is.a general rule that a defendant cannot enjoin the prosecution of illegal proceedings upon grounds which he may make available as a defense in such proceedings. Palmer v. Hayes, 93 Ind. 189; Martin v. Orr, 96 Ind. 27; Board, etc. v. Dickinson, 153 Ind. 682. * * * Sections three, five, six, and seven of the Barrett law must be construed together, and so construed they give to the abutter an opportunity to be heard before a tribunal empowered, and duty bound, to ad
The court found that there was no fraud in the proceedings of the common council, and the evidence sustains the finding upon this, as well as the other facts stated in the special finding. The conclusions of law were authorized by the facts found.
There was no error in the record. Judgment affirmed.