Crawfordsville Music Hall Ass'n v. Clements

Reinhard J. — This is an appeal from a precept issued by the city of Crawfordsville in favor of the appellee on an assessment for the construction of a sewer in said city, for which the appellee was the contractor. In the court below the appellee recovered judgment for the amount assessed against the appellant’s property, and a decree of foreclosure of his lien. Prom the declaratory resolutions, and the final [465] estimate of the city civil engineer, as well as from the special findings of the court, it appears that the city council attempted to construct the sewer under the provisions of the law relating to sidewalks, and that the assessments were ordered and levied upon the real estate abutting on the alley along which the sewer was constructed at so much per lineal foot, and were not apportioned among the lands, lots and parts of lots benefited by thé improvement, and according to such benefits, as the statute requires. R. S. 1894, section 4288 et seq.; Acts 1889, p. 237. This we think was a mistake which is fatal to the assessment. Such improvements should be paid for by the owners of property specially benefited thereby, and assessments according to the superficial area, and without regard to actual or probable benefits, are unlawful, and can not be enforced. It is doubtful even whether the Legislature could authorize such assessments. Thomas v. Gain, 35 Mich. 155; Clapp v. Hartford, 35 Conn. 66. It is certain that the Legislature of our own State has not authorized such an assessment, but on the contrary has forbidden it by prescribing another mode. We have a statute which provides that local sewers’shall be paid for by the abutting property owners, the same as in cases of sidewalks or street improvements. R. S. 1894, section 4273, Acts 1893', p. 332. But this statute was not in force when the sewer in controversy was constructed, nor is it at all clear that the sewer is a local one. It is insisted, however, that the appellant is estopped to deny the validity of the assessment because it is found by the court that, by its agent, it stood by and allowed the improvements to proceed, and accepted the benefit thereof after it had been informed and knew that the as466 sessments were to be made in the manner in which they were actually made. After careful consideration of this question we have arrived at the conclusion that the appellant is not estopped. The appeal from the precept is not a collateral, but a direct attack upon the proceedings. The appellant, notwithstanding the information it had received from the contractor that the assessments were to be made only on abutting property, and according to the superficial area, had a right to assume that the city officials would do their duty, and levy the assessments as the law required. Appellee’s counsel contend that appellant can not complain because other property should have been assessed also, but was not, and in support of this proposition they cite Balfe v. Bell, 40 Ind. 337; Sims v. Hines, 121 Ind. 534. These cases, however, do not support their contention. They only declare the law to be that the property owner can not complain as to any failure to assess other property, provided his own assessment was accurate and enforceable. This, however, is not true in the case of appellant’s property. It is this very act of assessing the appellant’s property wrongfully that is here complained of. It is quite true the common council of the city is to be the exclusive tribunal to determine when and what property is benefited by such improvements, and to what extent, and when such council undertakes to determine this question, its action will not be subject to review by the courts except for fraud or corruption. City of Fort Wayne v. Cody, 43 Ind. 197. But when the entire proceedings show that the assessments were made, not with a view to benefits, but solely according to location, such assessments are unlawful and void and will be so declared. [467] Filed Feb. 1, 1895. It is also very doubtful whether the proper notice was given by the council so as to give that body jurisdiction. Enough has been said, however, to show that the assessment against appellant’s property was void. Judgment reversed, with directions to the court below to restate its conclusions of law to the effect that appellee is not entitled to any judgment or decree.