32 Ind. App. 138 | Ind. Ct. App. | 1904
The common council of the city of Anderson, one of the appellees, having ordered an improvement of Fourteenth street from Jackson street westward to Madison avenue, in that city, and having contracted with Charles II. Daniels, the other appellee, for the making of
At the meeting of the city commissioners so announced the appellant, by its attorney, appeared specially, and to them orally denied the sufficiency of this notice, and denied the jurisdiction of the commissioners over the appellant and its real estate under the notice, and denied their right to assess its property., Thereupon the commissioners determined and found that the lots, lands, and parcels of ground abutting immediately on each side of Fourteenth street, and no other, were benefited, and that such benefits were equal in amount to the total cost of the improvement; and pursuant to such finding and determination the commissioners thereupon assessed the entire cost of the improvement against the lots and parcels of ground immediately abutting on Fourteenth street; and they assessed no part of the costs nor any benefits against and no damages in favor of the appellant or its real estate. The commissioners made a written report of this their assessment to the common council, December 2, 1901, which contained no assessment against the appellant or its real estate, and no assessment was ever made or reported to the council by the commissioners against the appellant or its real estate.
The common council gave notice by publication in the Anderson Herald on December 5 and 12, 1901, as follows: “Notice to Property Owners. For approval of final report of city commissioners. Notice is hereby given to property owners on Fourteenth street, from Jackson street west to
At the meeting held pursuant to this notice the council, by resolution, without any other notice to the appellant, amended the final report of the commissioners by making an assessment of $125 against the appellant’s real estate, that sum to become a lien thereon,.as a part of the cost*of the improvement.
In a paragraph of complaint setting forth the foregoing faets, in substance, to which a demurrer for want of sufficient facts was sustained, the appellant sought the canceling and setting aside of the assessment and lien and the quieting of its title.
The case involves a consideration of portions of an act of 1901 (Acts 1901, p. 534, §3623a et seq. Burns 1901). It is provided (§3623c) in relation to the first action to be taken by the city commissioners that they shall meet and shall proceed to view the lots, lands, and parcels of ground affected by the improvement, and that within fifteen days thereafter they shall file with the city clerk their written report, describing therein each lot, tract of land, or parcel of ground benefited or damaged by the improvement, together with the name of the owner thereof,
In the next section (3623d) it is provided that within twenty days after the filing of the report of the assessment of benefits or damages by tbe city commissioners the common council shall act upon that report at a meeting of which ten days’ notice shall he given by publication in a newspaper of general circulation in the city, setting forth the location and terminal points of the improvement and the date of the filing of the commissioners’ report, and reciting the time and place at which the council will meet for
In the next section (3623e). provision is made for an appeal by any. person owning any lot, tract of land, or parcel of ground, who is required to file a statement of his grievances, limited to the following: “(1) That the proceedings for said improvement are invalid. (2) That the benefits assessed to his or her property are too high or damages too low. (3) That the benefits assessed to his or her property are too high in proportion to the benefits assessed against other property similarly situated.”
This attack is not based upon any of the grievances for which an appeal is thus prescribed. It is'an attack questioning the validity of an assessment, and it therefore will not lie if the assessment was made by the common council substantially as provided in the statute.
The assault is made upon the one assessment on the ground of want of jurisdiction to make it acquired as provided in the statute. The argument has been directed in part to the form of the notices above set forth in so far as they purport to be addressed to the owners of property on
The notice of the meeting of the council for the consideration of the report of the assessments must set forth the location and terminal points of the improvement and the date of the filing of the commissioners’ report of assessments, and must recite the time and place of the meeting of the council for the purpose of confirming or modifying the assessment made by the commissioners, and that any person interested may appear thereat and make objection to such confirmation or modification. It was not required that this notice should contain any mention of particular lots, tracts of land, or parcels of ground, or should state the names of any owners thereof.
At the meeting of the city commissioners for the purpose of making the assessments, it is provided by the statute, all persons have the right to appear and have a hearing as to the benefits or damages to their respective lots, tracts of land, or parcels of ground. At the meeting of the common council for the purpose of “confirming or modifying the assessment made by such commissioners,” the council is required to give opportunity for hearing to all persons interested “as to any objection they may have to such assessment.”
Considering the statute in all its provisions and comparing the provisions with each other, we are of the opinion that it does not contemplate the assessment by the common council of property not reported assessed by the city commissioners.
When the appellant succeeded in having its property omitted by the commissioners from their report of assessments, it was not bound to take further notice of the proceeding, and, looking at the statute in all its parts, the notice givfen of the meeting of the council for the consideration of the matter of the assessment can not be regarded as intended by the legislature as a notice to the appellant on which to base an assessment by the council against the appellant’s property not included in the assessment report of the commissioners. If this be a correct view’ of the statute, the common council had not jurisdiction to make the assessment- in question, and it was not made as provided in the statute. Therefore the court erred in sustaining the demurrer to the appellant’s second paragraph of complaint.
Judgment reversed.