75 Ind. App. 285 | Ind. Ct. App. | 1921
Appellants present error of the court in overruling their demurrer to the complaint, and in overruling their demurrer to appellee’s reply to their answer, but the substantial questions involved in such rulings and in this case are presented by special findings of fact made by the court at the request of both parties. By such findings it appears that prior to June 4, 1914, the city of Garrett was a duly incorporated city of Dekalb county, Indiana. The town of Altona was an incorporated town of said county, lying immediately west and adjoining the said city of Garrett. Appellant Zumbrunner was the owner of certain real estate within
Appellants contend that the conclusions of law do not correctly state the law for the reason that where an assessment is made without color of law, or without a statute expressly authorizing the same, no lien can be created against the real estate, and the doctrine of estoppel cannot apply, and that therefore the property .owner is not estopped to deny the validity of the assessment. Appellee .contends that appellants have acquiesced in the construction of such sewer with knowledge until after the improvement had been completed, and that they cannot now escape payment for the actual benefit received even though the proceeding turned out to be void, provided the construction proceeded in good faith and without notice from the property owner. Appellee contends that the appellants cannot enjoy the benefits of the improvement and escape the burden unless they interfere before the benefit is received. It is provided in §8897 Burns 1914, Acts 1905 p. 388, §243, that in proceedings for annexation, such as in this case, where there is a remonstrance filed and an appeal taken, pending such appeal and during the time within which such appeal may be taken, such territory sought to be annexed shall not be deemed a part of the annexing city. By virtue of this section, appellants contend that
To sustain his contention appellee cites the cases of Martindale v. Town of Rochester (1908), 171 Ind. 250, 86 N. E. 321, and Anheier v. Fowler (1913), 53 Ind. App. 535, 102 N. E. 108. In the first of these cases the action was to enjoin the collection of assessments against the abutting real estate because of irregularities in the procedure, the appellant claiming first that there was no sufficient notice given of the declaratory resolution and of the time and place where objections would be heard, and further that such declaratory resolution was never confirmed, changed, modified, altered, or rescinded by said board. It will be observed that the matters complained of were irregularities in the proceeding, and there is no contention that such proceeding was not under color of law. The court rightly held in that case that, if the property owner did not commence his action within ten days from the letting of the contract as required by statute, he cannot, after the improvement is completed, maintain a suit to enjoin the making or collecting of assessments, upon any ground existing prior to the expiration of said ten days, and that, so construed, the statute referred to gives effect to the well fettled principle of equity that precludes the property owrier who permits the contractor to improve the street from defeating the recovery for the work because of errors or irregularities which occurred before the time the contract was executed.
In the second, case, the action was to set aside and annul the contract because of irregularities, and the
“Color of law” has been defined as a mere semblance of legal right, Kinneys Law Dictionary and Glossary; State of Iowa v. City of Des Moines (1896), 96 Iowa 521, 65 N. W. 818, 823, 31 L. R. A. 186, 59 Am. St. 381. Had an invalid statute been involved, or a statute afterward declared unconstitutional, there would have been ground for asserting that such statute apparently complied. with the forms prescribed by the constitution for its enactment, and contained an intelligible declaration of the legislative will with respect to some matter within the range of legislative cognizance. But no such statute was here involved; to the contrary, we have a valid statute expressly declaring in effect that the city had
In the case of Wilt v. Bueter (1916), 186 Ind. 98, 111 N. E. 926, 115 N. E. 49, the validity of a certain assessment against appellant’s real estate was challenged because it was made absolutely without authority of law. The trial court held upon the facts that, as a matter of law, appellants were estopped from denying the validity of such assessments, but the Supreme Court held that, while the statute providing that the validity of the contract might not be questioned subsequent to ten days after the letting of such contract, applies where the invalidity of the contract results from an irregularity or defect in the proceeding leading up to the letting thereof, such statute cannot be invoked in an action to restrain the collection of an assessment where the municipality was wholly without statutory authority, or color of law under which to proceed in ordering and making the improvement; that such a proceeding is void ab initio. It was held that as an essential element, the party claiming the estoppel must have acted in honest belief that there was authority of law for the proceeding, and that he had the right to rely on it; that an unconstitutional law, or one which has been impliedly repealed may well mislead persons acting under its apparent authority; that such person might well believe that an unconstitutional law was valid, or that the law which had been impliedly repéaled was still in force; but that, if there is no law which gives an apparent authority for the proceeding, there can be no room for any one to be misled or deceived thereby, and no one would be permitted to claim that he acted in good faith, if there was no apparent authority existing, and there could be no question of the good faith of the party claiming the estoppel.
In harmony with these authorities, we must hold that as there was no authority to make assessments for the construction of the sewer outside of the corporate limits of the city of Garrett, appellants were not estopped to deny the right to collect the assessment involved.
The judgment is reversed, with instructions to the trial court to restate its conclusions of law in favor of appellants and to render judgment in their favor accordingly.