186 Ind. 98 | Ind. | 1916
Lead Opinion
This action was brought by appellants as owners of certain described real estate on Calhoun street in the city of Fort Wayne, Indiana, against J. Herman Bueter as treasurer of Allen county and ex officio treasurer of the city of Fort Wayne, the city of Fort Wayne, and other appellees, who as contractors with the city had an interest in the assessments which were assailed by this proceeding. The purpose of the action was to have the assessments against the real estate of appellants declared void and the collection of such assessments enjoined. There was a trial by court, which upon the request of all parties found the facts specially and pronounced its conclusions of law „thereon in favor of appellees, and judgment was entered accordingly.
The proceeding which resulted in the assessments was instituted and carried forward by the officers of the city under the authority of §8745 Burns 1914, Acts 1905 p. 236, 319, which reads as follows: “Whenever the board of public works of any city shall order any street, alley or public place to be supplied with lamp posts, it may- by resolution order such lamp posts without publication or notice or the hearing of remonstrances. Contracts for such lamp posts may be let as other contracts, and the cost thereof assessed against the owners of the property benefited, as the cost of street sprinkling; and .the same shall be collected and the department of finance and the treasurer shall perform the same duties, and the contractor shall have the same rights as in the case of street sprinkling assessments.”
On March 3, 1913, the board of public works of the
Pursuant to notice the contracts were let, the contract for the lamp posts being awarded to the Bass Foundry and Machine Company at the price of $25.90 each, and the contract for the construction work being awarded to W. M. Sheehan and Company, for $8,014. Both of these contracts were finally awarded on September 15, 1913, and the publication of the notice occurred after the plans and specifications were on file. After the' specifications for the luminous arc globes were placed on file the board of public works gave notice, and pursuant thereto awarded the contract to the. General Electric Company at the price of $36 each. The board of public works did not fix a time for a hearing on the question as to whether the aggregate benefits to the property
Appellees' filed certain answers to which a reply in general denial was filed. Under the issues thus formed and from the evidence introduced thereunder the court found certain facts upon which appellees rely as constituting an estoppel. The trial court upon the facts
Appellants assert that the statute quoted in a former part of this opinion conferred upon the authorities of the municipal corporation power to cause lamp posts to be erected and to assess the costs against the abutting-property, but they insist that the power and authority there granted extends only to the cost of the lamp posts and the expense of erecting them. Appellants take the position that this statute does not afford to such municipality or its officers either legal or colorable authority to assess against abutting property the cost of extending the lighting system of the city by means of conduits and cables along that part of the street where such poles are erected, and of connecting such system with the poles and furnishing the lamps and globes, and attaching them to the posts.
In the case of the City of Fort Wayne v. Shoaff (1886), 106 Ind. 66, 5 N. E. 403, it was shown that a space had been dedicated to the city for a market place and that the city, proceeding under the statute authorizing cities to improve streets and alleys, had caused this space to be paved and had assessed the costs against the abutting property. It was held that the statute conferred ho authority to make the improvement at the expense of the abutting property owner and that the proceeding was absolutely void. In cases where the statute provides that the assessment shall be made against the property which abuts on the improvement, it has been held that an assessment made against property not abutting on the improvement may be enjoined on the ground that there was no legal authority to make the assessment and that the same is absolutely void. City
So it has been held that an assessment for the construction of a sewer could not be made against the franchise right of a street car company located within the limits of the street, when the statute provided that the costs should be assessed against the lots and parcels of land within the territory benefited, for the reason that the statute conferred power to assess lots and parcels of land only. Indiana Union Traction Co. v. Gough, supra.
On principle it would seem that any proceeding of this character, not based upon a valid law", would be
The general rule, however, is subject to the exceptions that such payment or tender is not necessary in cases where the entire assessment is void, as distinguished from one that is merely excessive, or where the amount of the taxes which are legal cannot be readily determined or easily separated from the taxes which are illegal. Norwood v. Baker (1898), 172 U. S. 269, 291, 19 Sup. Ct. 187, 43 L. Ed. 443; Jones v. Holzapfel (1902), 11 Okl. 405, 68 Pac. 511; 1 High, Injunctions
■ The judgment is accordingly reversed, with instructions to the trial court to restate its conclusions of law in accordance with this opinion.
Rehearing
On Petition for Rehearing.
Appellees’ counsel on petition for rehearing challenge the holding of the court in regard to a tender of the amount legally due from appellants for the cost of supplying'the lamp posts, it being further insisted by counsel that-a tender of the amount thus due was a condition precedent to the granting of injunctive' relief in this case.
The complaint states the total front footage of property abutting on the improvement and gives the front footage of the property owned by appellants. The cost of supplying the lamp posts is given jvith the cost of advertising. The amount of street and alley intersections, however, is not given and without such data- it would be impossible to determine appellants’ pro rata share of the expense in - question for the reason that there is no way of knowing how much of such expense is to be borne by the city. From all that appears it would have been necessary, in order that appellants know the amount equitably due, that they make an exact measurement of these stréet and alley intersections. The court has been cited to no authority announcing a rule which would require such action on the part of appellants, and it has been unable to find any. It is generally stated that a tender will be required in a proper case where “the amount of the valid tax can be readily ascertained.” 1 High, Injunctions (4th ed.) §497. In Mills v. Charleton (1872), 29 Wis. 400, 9 Am. Rep. 578, it was required where the amount of an excess was “plainly ascertainable.” The opinion in the casé of Ricketts v. Spraker, supra, states the rule using the expression “the amount conceded to be owing.” The expression “if such excess can be determined by mere computation,” is used in this connection in Wells v. Western Paving, etc., Co. (1897), 96 Wis. 116, 70 N. W. 1071, and in National Bank v. Kimball (1880), 103 U. S. 732, 26 L. Ed. 469, the amount of tender spoken of is “so much * * * as it can be plainly seen he ought to pay.” In the original opinion some figures were used in describing the improvement in question, but these were taken from the special finding. There is in the record nothing to show that the information
The cases cited by appellant to sustain their contention are cases in which an injunction was denied upon the ground that an absence of authority on the part of those sought to be enjoined had not been shown. Robinson v. City of Valparaiso (1894), 136 Ind. 616, 36 N. E. 644; Alley v. City of Lebanon (1896), 146 Ind. 126, 44 N. E. 1003; Everett v. Deal (1897), 148 Ind. 90, 47 N. E. 219; Gardiner v. City of Bluffton (1909), 173 Ind. 454, 89 N. E. 853, 90 N. E. 898, Ann. Cas. 1912A 713. This opinion is not in conflict with these authorities.
The petition for rehearing is overruled.
Note.—Reported in 111 N. E. 926, 115 N. E. 49. Illegal tax: (a') right of an individual to enjoin collection, 3 Ann. Cas. 1014, 6. Am. Dec. 198; (b) necessity of tender or payment of tax due to restrain collection, 22 L. R. A. 703. Injunction to prevent collection of tax on excessive assessment, 16 L. R. A. (N. S.) 807; L. R. A. 1916 A 972. See under (16, 17) 37 Cyc 1271, 1272.