The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1900-05-04
AN IMPROVEMENT CASE
THAT INVOLVES POINTS THAT HAVE
NOT YET BEEN SETTLED.
The Suit Is I'm the Appellate Court
Awaiting a observation-disclosures
May File Briefs.

Attorney w. v. Rocker Il have had
numerous inquiries concerning a case in
volving the unsettled questions that are
now controverted by people who attack the
constitutionality of the various public i'm
provement acts of the State. The case
in which / am interested is not in the
Supreme Court, as some of the inquiries
would indicate, but IL is in the Appellate
Court. II Is an appeal from judgment
rendered in favor of my client by Judge
Mount, in the Upton Circuit Court. The
case arose out of the Improvement of
Eighth street in Noblesville. On account
of the local influence at Noblesville the
venue of the case was transferred to Tip
ton. 1t arose out of the following facts:
The City Council of Nobiesville adopted a
resolution declaring the necessity for the
improvement of the street and gave the
statutory notice.
1.-THE plans and specifications were pre-
pared and property owners were given an
opportunity TO present their views. The
Council determined to improve the street
by the construction of brick roadway
with lawns and space for sidewalks.
Eighth street in the city of Noblesville
is occupied partially by the main line of the
L. z. & w. railway and the plans and
specifications as published contemplated
that the depot buildings and grounds of
the L. E. & w. be removed from their
present position as a part Of the street that
was to be improved. The depot buildings
and grounds were the west side of
Eighth street For a distance OF some two
squares on the opposite side of the street
the Noblesville Milling Company was an
abutting property owner. The contract
was duly awarded after notice and 1t pro-
vided that the improvement should be made
according to the original plans and speci-
fications, which contemplated the removal
of the railroad company's depot.
COMPANY BROUGHT SUIT.
After the contract had been let and the
work of improvement begun, the railroad
company, which is an Illinois corporation,
and, therefore, entitled to the rights OF
citizen of Illinois, brought suit In the
United States Circuit Court TO enJoin the
performance of the contract. The only par
ties to that suit other than the railroad
company were the city of Noblesville and
the street contractor. The suit had been
pending for a number OF months when an
agreement of compromise was made which
subsequently became an order or court In
that suit. BY the terms of the compromise
the city and the contractor abrogated tnelr
alleged right to remove the railroad depot
and improve that part OF the street when
it occupied. The city and contractor also
agreed to allow the railroad company re-
bate corresponding to an amount equal 10
the amount by which the expense OF the
Improvement would be reduced by cutting
out the company's property from the I'M
provement.
"Thereupon the Improvement was made
and the Council adopted an assessment
rate showing discrimination in favor OF
the railroad company as an aDutting prop
erty owner on the west side OF the street.
There was no allowance made to any other
property owner, and the assessment or
property on the street opposite the raiiroad
company's property was made ON the basis
of the performance OF the original plans
and specifications, while. as matter OF
fact, the compromise asreement nad re-
ting altogether the widening OF the street
so as to include a lawn and sidewalk where
the depot now stands. My client, the mill
ing company, thefeupon concluded to sub
NIT to the court the question of liability
for the assessment which had been levied
against its property by prorating per
front foot the entire cost OF the improve
ment When the suit to foreclose was
brought the assessment roll showed that
the property of my client had been as
sessed on the basis of the distribution of
the expense ratably upon all the property,
with an allowance Of rebate In favor OF
the railroad company. The rebate was ar
rived at Dy assuming tndt the property OF
my client was liable for Improvement car
ried TO the middle of the street, as it was
originally contemplated, ana by assuming
that the liability of the railroad company
could. in no event. extend beyond the mid
die of the street, as the Improvement was
originally contemplated.
POINT AT ISSUE.
''The question was therefore squarely
presented whether the city could perform
an Improvement contract different from
one which IL had notified its property own
ers was to be- performed. The position of
my client at the trial was that the city
had no right TO obtain the consent to the
making of street eighty feet wide, and on
the authority of that consent to make IL
only forty feet wide. They further con-
tended tha. the Legislature could have no
right under the Constitution to levy un-
equal taxation They contended also that
the Legislature could not authorize the
city to require the property of my clients
to bear the burden of an Improvement
which equally benefited the other abutting
property.
'',The contractor contended that the city
had power to levy its assessment according
to front foot rule, and that the dividing
line was the middle OF the street as de-
scribed in the original specifications. The
contractor insisted that the question of
benefits was wholly immaterfal. and that
the only duty the city had to perform was
10 prOrate the assessment on tne OASIS OF
frontage, regardless of equalization of
benefits.
Judge Mount, in his decision, did not
find it necessary to consider the constitu-
tionality of the improvement acts. He held
that in any event the Common Council had
no authority TO arbitrarily allow a rebate
to the railroad company. He held that the
assessment was void without declaring the
law under which ii was levied invalid. The
judgment was in favor of my client. and
the contractor appealed to the Appellate
Court, which, under the statute. has juris-
diction of statutory liens except when con-
stitutional questions are raised. The In
quiries addressed TO me invite the raising of
a constitutional question In the case, be-
cause the question is so clearly presented
of the right of a city TO levy an assessment
on the strict adherence TO the front foot
rule and in absolute disregard of the allot-
ment of particular benefits TO all the prop
erty alike No constitutional question has
yet been raised and probably will not be.
because my clients are willing TO stand on
the mere invalidity of the assessment 1t
has been urged that other counsel. as
friends of the court be allowed TO file briefs
raising the constitutionality of the ques-
oh 49, fo ira 1Gfa rod