The Indianapolis journal., 1903-07-16
WORK AN IMPROVEMENT
JUDGE CARRIERS DECISION IN MASS
ACHUSETTS-AVENUE CASE.
He Intimates that Board of Works
Acted in Bad Faith-Appeal Will
Be Taken-COurt News.

In the Superior Court yesterday Judge Car
ter held that the resurfacing of Massachu-
setts avenue was an improvement and not
repairs, and that the Board of Works has
a right to levy an assessment against the
abutting property owners, and refused to
grant a temporary injunction TO prevent the
board from carrying out the assessment.
The judge also intimated that the Board of
Works had not acted altogether fairly in
the matter of giving notice of hearing
after the matter was taken under advise
ment, in accordance with the promise to the
attorney for the property owners, Horace
Smith.
For more than a year the question of
whether the property owners or the city
should pay for resurfacing has been agi-
tated in Indianapolis, and the decision of
Judge Carter is considered important
one.
The property owners the lower end of
the avenue, at a meeting held in the office
of Smith, Duncan. Hornbrook & Smith, yes
terday afternoon, decided to appeal the case
to the Supreme Court, and the upper-end
owners will meet at Hawkins & Smith 5
office this afternoon, when it is thought SIM
liar action will be taken.
Judge Carter compared the case to the
building of a new house from the foundation
up. In the case under consideration the
whole surface of the street was removed
down to the foundation, even to the curbing,
and a new one put on. A large amount of
this work will be done in the city in the
near future, and for this reason the question
is of interest to the people of the city.
1t was contended that the Board of Pub
lie Works took final action in the matter
without letting the property owners know
until too late to file a remonstrance, and the
court held that this promise had not been
kept.
Judge Carter said: Although the men,
bers of the Board of Works made affidavits
denying that a promise was made to give
such notice, 1t was shown that the board did
| order the clerk, when attorneys appeared,
to make memorandum and notify the at
| torneys of the final action" While it is
not required by statute to give this notice,
| the judge said Ii was not good faith not to
| give It, The Judge indicated that had the
action of the property owners been taken
before the work on the street was completed
| he would have granted the injunction. An
other question brought out by the decision OF
| the court that has an important bearing on
| the case In the event OF an appeal to the
| higher court is whether or not the property
owners were too hasty in filing their peti-
| tion for an injunction before the collection
of the assessment had been attempted.
When the contract was let the Marion
County Construction Company was notified
| by the residents that they would take the
| contract at a risk, and for some reason this
company withdrew and the Barber Asphalt
Company did the work at 20 cents higher
| than the bid of the Marion County Construc-
| tion Company. The matter was taken under
| advisement by the Board of Works, and dur
ing this delay, the owners declare, the time
/ expired for them to demonstrate.