Martin v. Wills

Monks, C. J. Appellees brought this action to enforce the lien of an assessment for a street improvement, under [154] the provisions of the act of 1889, and the amendments thereto, known as the Barrett law. The case was put at issue, and a trial by the court resulted in a special finding of facts, conclusions of law stated thereon, and judgment in favor of appellees enforcing said lien. The errors assigned, and not waived, are: (1) The court erred in overruling the demurrer to the amended complaint; (2) the court erred in sustaining the demurrer to the third paragraph of answer; (3) the court erred in the conclusions of law. Appellants insist that the assessments for improvement under the Barrett law can only be collected by precept issued by order of the common council of the city, upon the filing of a proper affidavit of the contractor, as provided in §4298 Burns 1894, §6780 Horner 1897. It is true that a contractor may pursue the remedy provided in said section, but the assessments made against property for such improvements may also be collected by a foreclosure of the lien and sale of the property as provided in §4294 Burns 1894, §6777 Horner 1897. Dowell v. Talbott Paving Co., 138 Ind. 675; Bozarth v. Mallett, 11 Ind. App. 417; Bozarth v. McGillicuddy, 19 Ind. App. 26. The other objection urged to the amended complaint as well as the questions argued under the second and third errors assigned are predicated on tire theory that the Barrett law and the amendments thereto are in violation of §§21 and 23 of article 1 of the Constitution of this State, and that they are also in violation of the fourteenth amendment of the federal Constitution, under the doctrine declared in Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443. Appellants contend that it was held by the Supreme Court of the United States in Norwood v. Baker, supra, that a law providing for the apportionment of the cost of the improvement of a public street upon the abutting lots according to their frontage without a hearing as to the special benefits to said property is in violation of the fourteenth amendment of the Constitution of the United States. Said Barrett law and the amendments thereto as [155] interpreted by this court are not obnoxious to any provision of the State or federal Constitution, even if the contention of appellants as to the holding in Norwood v. Baker, supra, is correct. Adams v. City of Shelbyville, 154 Ind. 467, 49 L. R. A. 797; Defrees v. Ferstl, 154 Ind. 695; City of Indianapolis v. Holt, 155 Ind. 222; Taylor v. City of Crawfordsville, 155 Ind. 403; Schaefer v. Werling, 156 Ind. 704. The Supreme Court of the United States, however', has held in a number of cases that no such rule as that asserted by appellants was declared in the case of Norwood v. Baker, supra. In Webster v. City of Fargo, 21 Sup. Ct. 623, that court said: “But we agree * * * that it is within the power of the legislature of the state to create special taxing districts, and to charge the cost of a local improvement, in whole or in part, upon the property in said distinct, either according to valuation or superficial area or frontage, and that it was not the intention of this court in Norwood v. Baker to hold otherwise.” In French v. Barber, etc., Co., 21 Sup. Ct. 625, it was held by the same court that a state law apportioning the entire cost of a street improvement upon the abutting lots according to their frontage, without any hearing as to the benefits, is not in violation of the fourteenth amendment to the Constitution of the United States. The following cases decided by the Supreme Court of the United States on April 29, 1901, declare the same rule: City of Detroit v. Parker, 21 Sup. Ct. 624; Cass Farm Co. v. City of Detroit, 21 Sup. Ct. 644; Shumate v. Heman, 21 Sup. Ct. 645; Farrell v. Park Commrs., 21 Sup. Ct. 609; Town of Tonawanda v. Lyon, 21 Sup. Ct. 609. Binding no error in the record, the judgment is affirmed.