Defrees v. Ferstl

Hadley, J. Appelles, citizens and property owners in South Bend, brought this action to enjoin the appellant from carrying out the contract set out in the complaint, according to which contract appellant was to construct a brick pavement on certain streets in said city. It is alleged in the complaint that the plaintiffs own lots abutting on the proposed improvement; that said city is a municipal corporation; that on December 11, 1899, the common council by a two-thirds vote passed a resolution declaring the existence of a necessity for the improvement, defining the kind, size, location, and terminal points thereof, ordering the city clerk to give ten days’ notice thereof by two weeks’ publication, and that property owners along the line of the proposed improvement should file objections to the necessity for the same with the city clerk at any time before 7:30 p. m. on January 8, 1900, — said improvement to be executed as provided by an act of [696] the General Assembly approved March 8, 1889, and acts amendatory thereto; that the total cost of said improvement which will he assessed against the property bordering on the same, will be §8,000; that the cost to each front foot will be §6.40; that on January 8, 1900, the common council, by ordinance, ordered said improvement to be made, and authorized the mayor to enter into a contract therefor with the defendant (appellant), providing for partial estimates for completed work, and when the same should be allowed, and for full payment, and for the issuance by the city of bonds in anticipation of the collection of assessments to be made on abutters, etc., “all in accordance with the act of the General Assembly providing for street and sewer improvements in cities and towns, approved March 8,1889, and acts amendatory thereto”; that on February 1, 1900, the mayor of said city, in accordance with the authority conferred by the common council, contracted with the defendant for the execution of said improvement, and that the latter has executed his bond and will proceed with the work if not enjoined; that if the plaintiffs are assessed with their proportion of the total cost of said improvement, according’ to the provisions of the act of 1889, they will thereby be deprived of their property without due process of law and in violation of the fourteenth amendment to the Constitution of the United States and of the Constitution of the State of Indiana. Appellant’s'demurrer to the complaint for insufficiency of facts was overruled, and he, refusing to answer further, a judgment perpetually enjoining him from the performance of his said contract was rendered, from which he appeals. In their brief, appellees thus state their sole contention: “That the State of Indiana, through the so-called Barrett law, threatens to deprive appellees of their property without due process of law, contrary to the fourteenth amendment to the Constitution of the United States; ” and their complaint and argument proceed upon.the theory that the act of March 8, 1889, requires the assessment of the total cost of an improvement against the entire frontage equally per lineal foot irrespective of the question of benefits received, and that no hearing is provided for persons affected upon the question of special benefits. Appellant insists that the Barrett law'does not provide a “hard and fast rule” for frontage assessments, and that by section seven of said act such a hearing is provided that in every case the final assessment, as made by the common council, shall be on the basis of actual benefits received, and hence not in conflict with the federal or State Con* stitution.. The point in controversy has been fully considered by this court in the recent case of Adams v. City of Shelbyville, ante, 467, and ruled in favor of appellant’s contention; and upon the authority of that case we hold that the complaint does not state facts sufficient to [697] entitle appellees to the relief prayed. If the improvement is accomplished in accordance with the provisions of the act of 1889, as alleged in the complaint it will be, there exists for it full authority of law and no ground for injunction. Judgment reversed, and cause remanded with instructions to sustain appellant’s demurrer to the complaint. Baker, G. J., dissents.