The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1902-02-26
He Holds that School Property Is Not
Subject to Assessment for
Public improvements.
APPELLATE COURT DECISIONS
RECENT RULINGS ARE CITED BY AT
TORNEY BAKER.
If He Is Sustained by the Courts the
Question Will Prove One of
Large Importance.

If future court decisions agree with an
opinion rendered to the Board of School
Commissioner by its attorney, Albert E.
Baker, no school property will be assessed
hereafter for public improvements. In
stead of having annually to lay aside an
] appropriation for the purpose Of paying as
essment for street and sewer improve
ments which benefit school property the
School Board will be freed from that
financial burden and VIII be able to turn
the money TO other uses. The very i'm
portant opinion rendered yesterday by the
board attorney states emphatically that the
Indiana Appellate Court has held recently
that school property is not subject TO inn
provement assessments. Mr.. Baker cites a
number of other court decisions in the
opinion which follows to the same effect.
In former years the School Board has
paid all assessments levied, and the board
has annually set aside a sufficient appro-
priation for that purpose. From September
to December in 1901 the Board of School
Commissioners paid out $500 for street i'm
p~rovements. In the year preceding $500
was paid out. This year the board has
made an appropriation OF $4,000. 1t is
probable, it is stated, that since the opinion
of Mr.. Baker has been given the board
will resist all assessments. Friendly suits
may be brought to test the legality of the
authority of the controller to compel the
board to pay assessments.
The opinion was the result of a request
of Business Director John Z. Cleland to
Mr.. Baker. The request followed a notif-
cation of the board by the controller that
its share of assessments on school property
for the improvement of Northwestern ave-
nue. would be 5000.
THE OPINION IN FULL.
The opinion of Mr.. Baker follows:
Referring to the question you asked me
about a week ago, viz: Is there any reason
why the Board of School Commissioners
provement of Northwestern avenue, as
serted as a lien against the old township
school lot or lots at the northeast and
southeast corner of Northwestern avenue
and new Thirtieth street, L beg to say:
Until a few weeks ago L would have
answered that there is no objection, but
early this month L noticed a newspaper ac-
count of a decision of the Indiana Appel
late Court which seemed TO hold that it is
not possible in this State to acquire a lien
for street Improvement against real estate
held for common school purposes at the
time the Improvement is made. and L told
you L wished TO read the opinion. L have
now read it. 1t was handed down Feb. >,
1902. and is in cause No. 3475 of the Appel
late Court, entitled James Smith VS..
School City of Montpelier. Henley, judge.
delivering the opinion and affirming the
trial court.
I'm that case appellant Smith sued the
school city for an assessment on a street
Improvement in Montpelier. The complaint
not only showed an assessment. etc. prop
erly made against the school lot, but
showed the execution by the school cor
p~oration of a waiver under the Barrett
law. A demurrer to the complaint seeking
foreclosure of the lien. and if that could
not be had a money Judgment in per sonam
against the school city upon its promise
to pay expressed in the Barrett law waiver,
was sustained.
1.-THE court in stating the points for de-
cision said: The questions presented are,
have the board meaning Town Board the
power to assess school property for the
Improvement of a street, and can a school
city legally contract for the construction
of a street in front of its property?
ut further said: Appellant contends that
he had power unGer the complaint to re
cover a judgment i'm per sonam, irrespective
of the Town Boards power TO assess the
property, on the theory that the Barrett
law waiver created a personal liability 10
pay for the street Improvement. To this
the court cites as cases relied upon by APP
pellant Smith the following cases: Edward
c.. Jones Co. VS.. Perry, 20 Ind. App, 54 (5I
n. L. Rep, $3.50; Wayne Co. Savings Bank
VS.. Gas City, etc, 16 Ind, 662 (9 n. E.
Rep, 1048.)'
'dThe court then continues: The Town
Board did not have power to levy the as
sessment against appellee's property. The
Barrett law does not authorize the as
sessment of school property, or, in fact.
any public property. However, Ii does pro-
OF a street constructed or improved In front
of property owned by the State. r.. s. 1891,
Sec. 1920
UNIFORM OPINIONS.
1.-The courts of this country have been
uniform in holding that public property
cannot be assessed for constructing. i'm
proving or repairing a road or street unless
such property is made subject to assess
ment by statute. Elliott on Roads and
Streets. S9O-4O3; City of Frankfort VS.. State,
12S Ind, 43S; Griswood VS.. Pettin, "a Ohio
ST.. ASP; Nicklaus VS.. Conkling, lis Ind, 2S9.
1.-The courts of Kentucky have held. I'M
der an act which is not materially different
from the Barrett law. that a board of
trustees of an incorporated town cannot
lay an assessment upon school property.
City of Louisville VS.. Leatherman, 80 S. w.
Rep, 625.
Having held that no assessment can
be laid on appellants property for the
construction of the street, the one question
remains as to whether appellee has au-
thority TO assume the payment of the claim.
the work having been constructed. The
same question of power would arise If APP
pellee had contracted for the construction
of the street in the first instance.
The powers of a school corporation are
limited to those powers which the Legisla-
IOre mas Q6leSaleu 20 lneHl, ana persons
contracting with them must contract with
this in view. We do not find in the statute
any authority, either express or implied.
which would authorize a school corporation
10 expend the funds in its care In the con-
struction of public streets in front of its
property. The act of appellee by which 1t
agreed TO pay for the Improvement was
ultra wires and void
This is the decision, viz: That no lien
was created and that the promise to pay
expressed in the waiver was void and the
school city could not rightfully use the
public funds in its hands in performing
such a void covenant.
The court adds TO the opinion some mat
ter which ! do not understand or see the
bearing of. Here is what IL said: The
equity of the case is with the appellant.
The public school property has been i'm
proved no doubt by the construction Of the
street. If the claim be paid by the appellee
the cost falls upon the taxpayers and is
paid as other taxes. This would be Just
and right. The record as il comes to Us
presents no available error. Judgment af-
hrmed.
school officers are sworn to obey the
law. The court says the law is that their
property cannot be assessed and that they
cannot make a valid promise TO pay a street
assessment and that they cannot lawfully
devote the funds in their hands TO the cost
of improving a public street. If this Is true,
of course the court does not intend TO tell
such public servants that il would be just
and right for them 10 break the law and do
equity where the Legislature has given
them nc power TO do IL. l see no reason
why this decision does not control your
school corporation IN the case of the North