Hibben v. Smith
The plaintiff in error seeks by this writ to review the judgment of the supreme court of the state of Indiana, affirming a judgment in favor of one of the defendants in error. William C. Smith, foreclosing the lien of an assessment levied upon certain real estate in the town of Irvington, belonging to the plaintiff in error. The plaintiff Smith brought this action to foreclose the lien, and alleged in his complaint that he was the contractor for the doing of the work for a local improvement on Washington street in the town mentioned, and had complied with all the provisions of the statute and with his contract, and had finished the work, and was entitled to payment for the same; that an assessment to provide for such payment had been duly imposed by the board of town trustees upon the property abutting on the portion of the street where the improvement was made, and that the defendant, Sarah A. Hibben, was the owner of lots abutting on that improved portion of the street, and her assessment amounted to over $5,000, which she had not paid; that the assessment was then due with 6 per centum interest, and the plaintiff prayed that the lien might be foreclosed against her property, and that it might be sold for the satisfaction of the assessment, and for other proper relief in the premises.
The defendant Hibben demurred to the complaint, and the same having been overruled, she filed an answer thereto. She also filed a cross complaint. The answer and cross complaint set up the same facts in substance, and they both averred the unconstitutionality of the act of the legislature of Indiana providing for the improvement of streets under which the improvement in question was made, and also it was objected to the validity of the assessment that the alleged improvement was of no benefit to many of her lots, and that, on the contrary, the assessment upon such lots was greater than their value, and resulted in a substantial confiscation of her property in those lots; also that the assessment had been made by the front foot and without reference to the benefits received from the improvement, and that no hearing before the board of trustees was had and no consideration given to the question of whether or not the abutting property or any part thereof was specially benefited in an amount equal to, less than, or in excess of, the amounts fixed by the assessments which were confirmed by such board, but, on the contrary, that the assessments were made and confirmed upon the theory and belief that the statutes of the state established the rule of assessment at the same fixed price per lineal front foot on each side for the whole improvement, and that no change could be made therein by the board of trustees, and that the board refused at such hearings to hear or consider any objection to the assessment based upon any inquiry into the amount of special benefit accruing to any abutting lot or parcel of land.
It was also averred in the answer and in the cross complaint that all the members of the board of trustees of the town of Irvington were residents of that town and taxpayers therein, and that two members of the board were owners of lots abutting upon said improvement, and assessed therefor at the same rate per lineal front foot as the others, and it was averred that no assessment could legally be levied by such a board of trustees, and the assessment was, for that reason, wholly void.
These defenses contained in the answer, and which were also set up in the cross complaint, were severally demurred to by the complainant Smith, and the demurrers sustained, and upon the refusal of the defendant Hibben to amend, judgment enforcing the lien was entered, which, upon appeal to the supreme court of Indiana, was affirmed. [158 Ind. 206, 62 N. E. 447.]
Messrs. Russell T. MacFall, Murat W. Hopkins, and Merrill Moores for plaintiff in error.
[Argument of Counsel from pages 312-318 intentionally omitted]
Messrs. Lawson M. Harvey, William A. Pickens, Linton A. Cox, and Sylvan W. Kahn for defendants in error.
Statement by Mr. Justice Peckham:
[Argument of Counsel from pages 318-320 intentionally omitted]
Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court: