163 Ind. 599 | Ind. | 1904
Appellant brought this suit against the Pittsburg Plate Glass Company, the owner of back-lying real estate within 150 feet of a street in the city of Kokomo j improved in 1893, under the Barrett law, to enforce the lien of an assessment for said street improvement, on the ground that the subdivision primarily liable therefor had, at a judicial sale on a decree foreclosing said lien, proved insufficient to pay said assessment. A demurrer for want of fapts was sustained to said complaint, and, appellant refusing to plead further, judgment was rendered against bim. It appears from the complaint, among other things, that Joseph S. Amos was -the owner of lots twenty and twenty-one, lying immediately upon and adjacent to the line of said street improvement, neither of which extended back 150 feet from the front line thereof; that appellee Pittsburg Plate Glass Company owned all the real estate lying back of each of said lots within said 150 feet. The city engineer, as required by §4293 Burns 1894 (Acts 1889, p. 23Y, §6), described in his report said lots twenty and twenty-one, and gave the name of Jacob S. Amos as the owner thereof. In said report the amount of the cost 'of the improvement due upon said lot twenty was $200.60, and upon said lot twenty-
The owners of the lots described in said report of the engineer signed and filed a written promise to pay said assessments as provided in §4294, supra, and the city issued and sold street improvement bonds to pay for the improvement of said street, under §4296 Burns 1894 (Acts 1889, p. 237, §8). Appellant is the owner of all the bonds and the interest coupons attached thereto so issued by said city of Kokomo, and the same, to the amount of several thousand dollars, are due and unpaid. In a suit in the court below, brought by appellant for that purpose, he recovered a personal judgment against said Amos on said written promise, and a decree foreclosing said assessment lien against said lots twenty and .twenty-one. Said lots were duly sold upon said decree, and the proceeds of said sale were not sufficient to pay the same. Said Amos was insolvent, and since the rendition of said judgment has been adjudged a bankrupt in the district court of the United States for the district of Indiana. Under §4296, supra, appellant, as the owner of bonds, has all the rights and interest of said city of Kokomo in and to the assessments and liens for the improvement of said street, with full power to enforce the collection thereof by foreclosure.
It is provided in §4290 Burns 1894 (Acts 1889, p. 237, §3), that “the owners of lots or parts of lots bordering on such street or alley, or the part thereof to be improved, # * * shall be’ liable to the city for their proportion of
The word “of” between the words “improvement” and “such” in the part of said section above set out, is incapable of any sensible meaning, and the clause in which it appears is complete and sensible without it. It is evident that said word was inserted throxxgh inadvertence or mistake, aixd should be rejected. Black, Interp. of Laws, §39; Sutherland, Stat. Constr., §260, p. 342; Endlich, Interp. of Stat., §§301, 302.
Construing the above-quoted provisions of §4290, supra, in connection with §§4293, 4294, supra, it is evident that the common council of the city or the board of trustees of the town assess the special benefits of the improvement to each lot or parcel of ground abutting thereon, to such lot or parcel of ground, regardless of whether the same extends back 150 feet or less from the front line thereof. Adams v. City of Shelbyville (1900), 154 Ind. 467, 490, 491, 49
The notice by publication required by §4294, supra, when made, gives the common council of the city or board of trustees of the town full and complete 'jurisdiction over
It is insisted that this construction of the Barrett law renders the same unconstitutional. as to the back-lying real estate, on the ground that each owner of real estate, whether the same is abutting or back-lying, is entitled to a hearing on the question of the special benefits to his parcel of land;, citing Adams v. City of Shelbyville, supra; Martin v. Wills (1901), 157 Ind. 153; Leeds v. Defrees, supra; Wray v. Fry (1902), 158 Ind. 92. The only question before the court, in the cases cited was the proper construction of the Barrett law, and this court held in those cases that said law provided that the real estate within the taxing district, prima facie, received special benefits from the improvement according to frontage, but' that the common council of the city or board of trustees of the town had the power to alter or change the same so as to conform to the special benefits received, and that all persons aggrieved had the right to a hearing before such questions were determined. It was held that the law so construed was not obnoxious to any provision of the state or federal Constitution. It was not necessary, therefore, in said cases to determine as to the constitutionality of a law which declared that the total cost of an improvement should be assessed equally against the frontage according to what is known as the front-foot rule, without allowing or providing for a hearing as to special benefits to the real estate charged therewith, for no such law was before the court. None of said .cases cited by appellee gives any support t'o its contention. What was said in Adams v.
In Webster v. Fargo (1901), 181 U. S. 394, 21 Sup. Ct. 623, 45 L. Ed. 912 (and see French v. Barber Asphalt Pav. Co. (1901), 181 U. S. 324, 21 Sup Ct. 625, 45 L. Ed. 879; Detroit v. Parker (1901), 181 U. S. 399, 21 Sup. Ct. 624, 45 L. Ed. 917; Cass Farm Co. v. Detroit (1901), 181 U. S. 396, 21 Sup. Ct. 644, 45 L. Ed. 914; Shumate v. Heman (1901), 181 U. S. 402, 21 Sup. Ct. 645, 45 L. Ed. 922; Farrell v. West Chicago Park Com. (1901), 181 U. S. 404, 21 Sup. Ct. 609, 45 L. Ed. 916; Tonawanda v. Lyon (1901), 181 U. S. 389, 21 Sup. Ct. 609, 45 L. Ed. 908) cited in Martin v. Wills (1901), 157 Ind. 153, 155, the Supreme Court of the United States held “that it is within the power of the legislature
It is insisted by appellee'that tbe bondholder succeeds only to the lien against the property owned by those who sign the waiver and promise to pay the assessment, and -that as the Pittsburg Plate Glass Company did not sign such writing, appellant, the bondholder, has no lien on the bach-lying real estate owned by it. Even if no bonds should have been issued by the common council of said city to procure the money to pay the assessments against said lots twenty and twenty-one, and the real estate owned by the plate glass company, until said company signed said waiver and promise — a question we need not and do not decide — still the execution of said writing by the owner of said lots twenty and twenty-one did not release the back-lying real estate of the plate glass company from the lien of said assessment. The bonds having been issued, and the money paid therefor by the bondholder used to pay the contractor, the bondholder is subrogated t'o the rights of the city and contractor to enforce the lien of said assessment against said lots twenty and twenty-one, and the real estate lying back thereof, t'o reimburse him for the money so used. Appellant was not a mere volunteer, but upon principles of equity and justice is entitled to enforce the lien of said assessments. Davis v. Schlemmer (1897), 150 Ind. 472, 478, and eases cited; Fowler v. Maus (1894), 141 Ind. 47, 52, 54, and cases cited; Reed v. Kalfsbeck (1897), 147 Ind. 148, 154, 155, and cases cited; Milburn v. Phillips (1895), 143 Ind. 93; Baker v. Edwards (1901), 156 Ind. 53, 58, and cases cited; Wat
It follows that the court erred in sustaining the demur-* rer to the complaint. Judgment reversed, with instruc** tion to overrule the demurrer to the complaint, and ioi further proceedings not inconsistent with this opinion.
Hadley, J., dissents.