Cleveland Cincinnati Chicago St. Louis Railway Company v. Porter

This case involves the legality of a tax for street improvements, imposed on the property of plaintiff in error, herein called the railway company.

The tax was imposed under a law of the state called the Barrett law. The law makes the amount of the assessment a lien upon the property improved, and gives to the contractor or his assignees the right to 'foreclose such assessment as a mortgage is foreclosed.' Successive suits may be brought if the judgment in the first suit fails to satisfy the assessment and costs.

The defendants in error were the contractors for the improvement, and brought this suit in the circuit court of Boon county, Indiana, and alleged in their complaint the adoption under the law, by the common council of the city of Lebanon, where the property proceeded against is situated, of a declaratory resolution providing for the grading and paving Main street and constructing sidewalks and lawns thereon. The complaint alleged the steps taken by the council of the city as prescribed by the law; the assessment against the several lots and parcels of ground abutting on the street; that one Mary Kelly was the owner of a tract of unplatted land abutting on the street, which was assessed the sum of $588.56; her refusal to pay the assessment, and that suit was brought against her and her husband to foreclose the lien of the assessment. And it is alleged that, after proceedings had, a decree was entered for the sum of $650, being the amount of the assessment and costs. That sale of the property was made under the decree for the sum of $75, which was its fair cash value, and that there is still due thereon $581.32, with interest. That the railway company was the owner of a tract of land immediately back of the real estate of Mary Kelly, 'from the street so improved,' that is, that her real estate was situate immediately between the street so improved and the real estate of the railway company, which real estate was within 150 feet of the line of the street. A demand for the amount of the balance due on the assessment was alleged. Judgment was demanded for that sum, and the foreclosure of the lien of the assessment against the real estate of the company, and for an order of sale.

A second paragraph of the complaint alleged a like assessment against the property of one John T. Walton, the foreclosure of the lien thereon, and the sale of the property, the balance due, and that the property of the railway was situated immediately back of it. The like judgment was prayed as in the first paragraph.

The only parts of the answer with which we are concerned are the allegations that the land of the railway company did not abut upon the street improvement, but lay back of lands owned by others which abutted upon the street, and 'that, in the proceedings of the common council of the city of Lebanon, in an action taken by the civil engineers of said city, in any notice to property owners, in any assessment of property had, given, or done with reference to said improvement, this defendant's said tracts were not named, described, nor referred to, nor was either of them; that neither of said tracts was assessed for said improvement, neither of said tracts was considered with reference to any assessment for said improvement, neither of said tracts was benefited by said improvement; that the defendant did not appear before said council or any committee of said council, either actually or constructively, with reference to either of its said tracts, and the records of the proceedings of the city of Lebanon as to said improvements do not disclose any such appearance by, or notice to, this defendant, or the consideration or assessment of either of said tracts for such improvement.'

The third paragraph of the answer is as follows:

'For third and further answer to the amended complaint and each of the paragraphs thereof separately the defendant says that the acts of the general assembly of the state of Indiana, under and by virtue of which it is claimed and assumed that the lien respectively sued upon have accrued and attach to the respective tracts of the defendant, is unconstitutional and void, in that it makes no provision for a notice to or a hearing from the property owner whose property does not abut upon the street to be improved; it denies due process of law, denies the equal protection of the laws, and takes private property for public use without compensation.'

Judgment was rendered against the company, which was affirmed by the appellate court on the authority of Voris v. Pittsburg Plate Glass Co. 163 Ind. 599, 70 N. E. 249.

Messrs. Frank L. Littleton and Leonard J. Hackney for plaintiff in error.

[Argument of Counsel from page 180 intentionally omitted]

Messrs. George H. Gifford and Glen J. Gifford for defendants in error.

[Argument of Counsel from page 181 intentionally omitted]

Mr. Justice McKenna delivered the opinion of the court: