160 Ind. 4 | Ind. | 1903
Action to enforce the collection of an assessment for a street improvement. Complaint in two paragraphs. Demurrer to each paragraph overruled. Answer in one paragraph by Annie E. Taylor, and in two by her co-appellant Harold Taylor. Demurrers to answer of Mrs. Taylor and to second paragraph of answer of Harold Taylor sustained. Trial by court, and judgment for appellees.
Errors are assigned on the rulings on the demurrers, and all present, substantially, the same question.
The complaint contains the usual averments, and thus describes the improvement ordered to be made: “That on June 14, 1900, the common council of the city of Crawfordsville, by a two-thirds vote of all its members, adopted a resolution to grade the roadway and sidewalk, and to construct open gutters along the sides of the roadway, in accordance with profile and specifications on file, * * * the cost of which was to be assessed upon the abutting property.” The street so to be graded was one of the public streets of the city of Crawfordsville, and the property of Mrs. Taylor abutted on the portion of said streét ordered to be improved.
The objection taken to the complaint is that the resolution of the common council directing the improvement of the street was void, for the reason that it provided for the grading of the street only, and not for grading and paving it, as required by the statute authorizing such improvements.
The proceedings of the common council of (he city of Crawfordsville in this matter were based upon §§4288, 4292 Burns 1901 (Acts 1889, p. 237, §§1, 5), which read as follows: “4288. That when the owners of two-thirds of the whole line of lots ok parts of lots in any city or incorporated town (and measuring only the front line of such lots as belong to such persons resident in such city or town) bordering on any street or alley consisting of one whole square between any two streets crossing the same, or if the common council of such city, or the board of trustees of such town, deem it expedient for any reasonable distance less than one whole square or block upon any square or alley, shall petition the common council of such city or board of trustees of such town to have the sidewalk graded and paved, or the whole width of the street graded and paved, or for either kind of improvement, or for lighting such street according to the general plan of improvements in said city or incorporated town', or for constructing a sewer, the common council of such city or the board of trustees of such town may cause the same to be done by contract, given to the best bidder.” “4292. The common council of such city * * * with the concurrence of two-thirds of the members thereof, may order or cause any or all of the improvements mentioned in the first section of this act, * * * to be made in like manner, without such petition.”
The question presented is one of statutory construction, and in this State, at least, the case seems to be without precedent. The legislature having enacted a statute upon the subject of the improvement of streets in cities, the power of the common council to cause such improvements to be
We can discover no good reason why “or” should be substituted for “and” in this act, nor has any been suggested to us. To grade and pave is to make a completed improvement, and is something entirely different from the mere reduction of the natural inequalities of the surface of the ground to a uniform and artificial grade. The statute provides for such complete improvement, and its terms exclude a partial one by grading only. We can easily presume that the legislature had sufficient reasons for using the precise language it employed, thereby requiring the improvement to be made by both grading and paving. The mere graduation of a street might be of little or no benefit to the abutting
The appellees contend, however, that even if the ordinance directing the improvement was invalid, yet, as the contractors relied upon the record of the common council, and laid out money and performed labor for the benefit of the abutting property without objection on the part of the appellant, she is estopped to deny the validity of the proceedings. It is true, undoubtedly, that a landowner who
The complaint failed to state facts sufficient to entitle the appellees to any relief, and the demurrers to it should have been sustained. As the complaint was bad, the other errors assigned need not be considered.
Judgment reversed, with instructions to sustain the demurrers to the complaint, and for further proceedings in accordance with this opinion.