179 Ind. 658 | Ind. | 1913
This was a suit by appellants against appellees, to enjoin the collection of alleged illegal ditch assessments. Appellees’ demurrers to the complaint, for insufficient facts, were sustained, and these rulings are here assigned as erroneous.
It is alleged in the complaint, that in 1902, appellees (except Davisson) filed with the auditor of Cass County, their petition for the construction of a ditch, having its source in that county, and extending into the counties of Pulton, Pulaski and White, and terminating in the Tippecanoe river; that “commissioners” (viewers) were appointed, who on May 6, 1903, made a report showing benefits, etc., and the same was confirmed, and the ditch ordered established by the board of commissioners of Cass County; that on August 27,1903, a contract for the construction of the ditch was awarded to one Hillis for $53,000, who gave bond; that thereupon the board proceeded to apportion and assess the construction cost ($53,000) together with other necessary expenses, estimated at $15,000, and making a total of $68,-000, against the lands reported benefited, and in proportion to the benefits; that lists of such assessments were then made separately in each of the counties, which assessment lists show the amounts required to be paid for construction, on
A schedule, covering many pages of the record, showing the original assessments for construction, and the new assessments, is set out, and is in the following form:
It is alleged that the new assessments are void for various reasons, among which are the following: the Pulaski Circuit Court had no jurisdiction over the suhject-matter, and was without authority to appoint a construction commissioner, and had no power to order a further assessment of the lands; that by suit on Hillis’ bond enough money can be recovered
Appellants assume that the ditch was ordered established under the law of 1885, amended in 1889, 1901 and finally in 1903. Acts 1903 p. 384. This assumption is erroneous. The proceedings were instituted under §§24 and 25 of an act approved April 21,1881 (Acts 1881 [s. s.] p. 410, §§4285-4317 R. S. 1881). In the main, this act continued in force until its repeal in 1905 (Acts 1905 p. 456, §14). Sections 16, 19, 20, 21 and 31 were amended in 1891 (Acts 1891 p. 313). Sections 2, 8 and 9 were amended in 1893, so that the construction of a ditch, as an entirety, might be let to a contractor (Acts 1893 p. 329). Before the viewers had filed their report in relation to this drain (May 6, 1903) §2 of the act of 1881, amended by the act of 1893, had been again amended. Acts 1903 p. 186.
By virtue of the provisions of §§2, 17 and 21, of the act of 1907, the circuit court of Pulaski County, in 1907, assumed jurisdiction of the proceedings.
Appellants earnestly contend that under the second proviso of §2 of the act of 1907, the Pulaski Circuit Court acquired no jurisdiction, because this was not a “proposed drain,” but on the other hand, one long before established, and partly constructed; that the board of commissioners of Cass County lost jurisdiction because of the provisions of §17, and consequently the proceeding abated.
In Rogers v. Voorhees (1890), 124 Ind. 469, 24 N. E. 374, the question was whether, in case the original assessment of benefits in a drainage proceeding, under the act of 1885, proves inadequate to complete the work, is the court authorized, under proper proceedings, to refer the matter to the drainage commissioners to reassess benefits in order to procure funds to complete the work. In the opinion, by Mitchell, J. the eminent jurist said: “The power of the court, until the work is fully completed and accepted, must be regarded as a continuing power within the limits above stated, viz., that the entire cost of the improvement must fall upon the lands benefited in proportion to the benefits which accrue to each tract affected, and that no tract can be assessed in a sum exceeding the amount of benefits resulting to it from the work, as adjudged by the court. What good reason can be suggested for holding that if, on account of a supervening flood the cost of completing the work should be greatly increased, the court might not ascertain upon a supplemental petition and notice whether or not the benefits to the lands might not be equal to the expense of constructing the work notwithstanding the enhanced cost. If, as in the present ease, the cost or expense of completing
Judgment affirmed.
Note.—Reported in 101 N. E. 632. See, also, (2) 36 Cyc. 1111; (3) 14 Cyc. 1030; (4) 36 Cyc. 1162; (5) 11 Cyc. 714; (6) 14 Cyc. 1050; (7) 14 Cyc. 1043 Anno.; (8, 12) 14 Cyc. 1064; (9) 14 Cyc. 1062; (11) 16 Cyc. 1075. As to the exercise of the power of eminent domain for drainage purposes, see 102 Am. St. 812. As to rules for the construction of statutes in respect of the intent of the lawmakers, see 12 Am. St. 827. As to injunction where the applicant alleging irreparable injury has a full, complete and adequate remedy at law, see 1 Am. St. 377. On the question of procedure for establishment of drains and sewers, generally, see 60 L. R. A. 161