This wаs an action brought by the appellee, against the appellant David T. Praigg, Agnes Praigg, his wife, and others, to enforce the collectiоn of an assessment against lot 46, abutting on an alley, which crosses Alabama street, between Seventh and Tenth streets in the city of Indianapolis, fоr its proportion of the cost of improving said Alabama street between Seventh and Tenth streets, said lot being in Allen and Root’s north addition to thе city of Indianapolis. It appears, from the complaint, that appellee was the contractor and had completed the work pursuant to, and the action was being prosecuted under the provisions of the act entitled “An act concerning the incorporаtion and government of cities having more than 100,000 population, according to the last preceding United States census,” etc., approved March 6, 1891 (Acts 1891), and the act amendatory thereof, of March 22, 1893, Acts 1893, p. 56; that the appellant was the owner of the lot, and that the amоunt of cost of said improvement apportioned to said lot was 111.59 which had been duly demanded of the appellant, and he had refused tо pay the same. The complaint sought to enforce the lien on the lot, given by the statute, for its proportion of the cost of such improvement. It was alleged against the other defendants, under the" firm
This case was first distributed to the appellate court, but finding that apрellant in his brief assailed the constitutionality of the statute, it was transferred by that to this court pursuant to the statute regulating the jurisdiction of that court.
The court found in favor of the plaintiff principal and interest of the assessment $12.74 and $25.00 attorney’s fees, and that it was a lien upon said lot, and that the other defendants had a lien on the lot, but that such lien was junior and subject to the appellee’s lien, and rendered judgment accordingly, forеclosing the lien. There is no controversy except as to the construction of the statute and its constitutionality.
The fifth section of the amendatory act which amends section 74 of the original act provides that “The cost of any street or alley improvement shall be estimated according to the whole length of the street or alley, or so much thereof to be improved, as is uniform in the extent and kind of the propоsed improvement per running foot, and the total cost thereof, exclusive of one-half the cost of street and alley intersections, shall be apportioned upon the lands or lots abutting thereon. The remaining one-half cost of street and alley inter
It appears both from the complaint and answer that appellant’s lot 46 is on an alley interseсting Alabama street, the improved street, and is between said Alabama street and Delaware street, which is parallel with and the next street wеst of Alabama street. The complaint, however, evidently through a clerical mistake, states that appellant’s lot 46 is west of Delaware street. Other parts of the complaint and the defendant’s answer make it abundantly plain and clear that the word “west” was written by mistake in the cоmplaint, instead of the word “east.” This is such a mistake, or imperfection, as could have been rectified at any time in the trial court, by substituting east fоr west, and which the statute deems to be so amended in this court. R. S. 1894, section 610 (R. S. 1881, section 658).
But appellant’s contention arises out of the fact thаt there is an alley twenty feet wide running parallel with, and between Alabama,the improved street,and Delaware street, and appellant’s lot 46 is west of said alley, the
Appellant’s contention is, that the alley being so wide may be regarded as a street, and, if so, his property by the express terms of the statute quoted is not liable to assessment, becаuse by it such liability can extend no farther than to the first street parallel with the improved street. He contends that the word street is a generic tеrm which includes any and all public highways which would include alleys. There might possibly be some room for such contention if the Legislature had only used the wоrd street, but. they used the word alley as well as street. And the word alley is defined by Webster’s International Dictionary as ‘1 a narrow passage or way in the city as distinct from a public street.” Besides the act in question and the one it is an amendment to were never intended to and cannot have аny operation or effect in any other city than that of Indianapolis where the wide streets, avenues and even the universally wide alleys аre the pride of the whole State. Mode v. Beasley,
There can be no doubt, therefore, that the Legislature recognized that there were such things as allеys in Indianapolis even if they are wide enough to make pretty good streets in the old plat of the city of St. Louis, yet the Legislature following the hаbits of the people of the city called them alleys as contradistinguished from streets. The legislative intent is made apparent not to bоund the liability of lots to assessment for such improvements by the first alley but by the first street from the improved street each way when the street or alley сrosses the improved street as was the case here.
But appellant says such construction of the statute renders it unjust and therefore unconstitutional. He has cited no provision of the constitution which is sup
The superior court, therefore, did not err in overruling the demurrer to the complaint nor in sustaining the demurrer to the answer.
Judgment affirmed.