The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1900-04-28
THE BARRETT LAW VALID
ACCORDING TO THE DECISION OF
THE SUPREME COURT.
The Finding Made in a S~heIbyvilIe
Cnse-Judge Baker viii Have
a Dissenting Opinion.

the decision OF the lower court on 2 teen
nicality, but affirming the constitutionaIity
Of the Barrett Improvement law. Judge
Baker dissented from the decision of the
court and will file his opinion soon.
The suit was originally brought by Thos.
B. Adams TO enjoin the city of Shelbyville
from putting in a new curbing and laying
a sidewalk in front of his property in Shell
byville. He maintained in his complaint
that the proposed Improvement would not
only be no Improvement to his property,
but would be an actual detriment to it.
Some time ago Judge Baker. of the Fed
erai Court, granted an injunction forbid
ding the paving of a street leading from
Marion to North Marion, on the ground
that the Barrett law was unconstitutional.
His decision was based on a decision of the
Supreme Court of the United States. When
giving his decision i'm the case he said that
If the law should receive a different con-
struction by the Supreme Court of Indiana
he would feel bound to hold the law con
stitutional. Judge Bakers decision was
based on the ruling made by the Supreme
Court of the United States in the case of
Norwood VS.. Baker. in which IT was held
that an ordinance imposing the cost of a
street Improvement on the abutting prop
erty according to the number of front feet,
instead of making assessment in proportion
to the estimated benefits, was unconsti-
t%utional. Since Judge Bakers decision a
large number of cases involving the con-
| stitutionalify of the Barrett law nave been
appealed to the Supreme Court. and the
decision of the court In the present case is
intended to dispose of the questions pre-
canfad hv oil fhaca anDaaIs co far No NOS
sible.
THE OPINION.
The opinion of the court was delivered by
Judge Hadley, who said in part: 1.-The judg-
ment of the Federal Supreme Court, defin-
ing the limits of the legislative power sane
toned by the Federal Constitution, is the
supreme law Of the land. 1t
state courts as well as State Legislatures.
The duty thus imposed is agreeable, as be-
ing In accordance with our sense of Just
principles and as furnishing only reasonable
| foundation for the exercise of the taxing
power in respect TO special assessments.
Streets, are public highways, which all
inhabitants of the municipality have an
equal right to use, and by the Improvement
of which all are in a measure benefited.
| There is much justice in holding that a
sum equal to the special benefits, that Is.
such benefits as are not shared by the citi-
II Luis civ lls upOu tnC dbutlCt
may be exacted for application to the costs
of the Improvement, for when the corpora
ton takes only such as 1t returns in the
way of enhanced values and increased per-
sonal comfort the property owner is not
injured; but when he has thus contributed
his special benefits, as to the remainder of
the costs, he stands as any other citizen.
This remainder represents the price TO the
public for its general benefits, and is clearly
a taking of property for public use without
just compensation.
THE PRINCIPLES.
I'VE conclude, therefore, that the prin-
ciples applicable to assessments for local
improvements are these: The Legislature
may create, or authorize a municipality to
create. a local taxing district for local i'm
provement purposes, which includes part
only Of the property within the municipal
ity. The Legislature may declare conclu-
sively that only the property within the
taxing district shall be specially assessed
on account of local improvements within
that district. Each parcel of contributing
property may be assessed only to the extent
that II actually receives benefits. The tax
ing district, as a whole, may be assessed
only to the extent of the sum OF the special
benefits actually received by the several
parcels Of the contributing property. The
Improvement, so far as its cost exceeds the
special benefits resulting to the several par
cells of property in the taxing district. Is a
benefit to the municipality at large, and
such excess must be borne by the general
Improvement within a taxing district are
entitled to a hearing on the question OF
special benefits. 1t remains TO be seen II
the Barrett law denies any or these prin-
ciples.
I'm arriving at the true Interpretation Of
the statute, II is useful for us TO consider
the legislative and judicial history of the
State and country prior to the enactment
4 af tho porroff law niilnn and COOlav ClQGS
Indiana as one of the majority States, up
holding the doctrine that 1t is competent
for the Legislature to conclusively declare
that the total cost of a local Improvement
shall be assessed equally against the
frontage, and such classification was not
without warrant. In 1852 the right to con-
fer authority upon municipal officers TO so
provide for street and other improvements
was first asserted by the Legislature in a
general law
CALLED INTO QUESTION.
'"The constitutionality Of such legisla-
ton was never called into question until
1868. when IL was assailed on the ground
only that the same was in violation of the
State Constitution requiring the rate of
assessment and taxation to be uniform and
equal.
such legislation was then and subse-
quently against said objection. But the
constitutional question Of due process of
law and the taking of property for public
use without compensation in the making of
local improvements within the meening of
the fourteenth amendment of the Federal
Constitution seems never to have been pre-
viously considered by this court so far
as we have observed. Hence. no grounds
exist to justify that the determination by
this court under former street improve
ment laws of the constitutional question
now involved has been carried into the
enactment of the statute in controversy.
1T should be noted that prior 10 1889 nc
provision was found in any of the laws
emitting property owners TO a voice upon
the necessity for the Improvement. or 10 a
hearing of any kind upon the acts of the
assessing officers, or to be heard upon any
subject touching the improvement, until
after the issuance of a precept for the sale
OF their property or the payment OF the
assessment, and then only as to the regu'
larity OF the proceedings subsequent TO the
making of the contract for the improve
ment. II was doubtless manifest TO the
lawmakers that in some instances munici.
pal officers by reckless and inconsiderats
acts. without testing public opinion, haC
involved citizens In heavy and unnecessary
burdens by improvements. and that IL was
10 them equally clear that all property
bordering upon a municipal highway wa:
rot affected in the same way by an i'm
provement of the latter.
A REASONABLE PRESUMPTION.
1T seems reasonable 10 presume, there
fore. that the michiefs resulting from the
acts of reckless officials and the common