City of Indianapolis v. Holt

Dowling, J.

— In this suit, the validity of the statute relating to the improvement of streets in cities in Indiana, having a population of 100,000 or more is assailed, on the ground that it violates the provisions of articles five and fourteen of the federal Constitution, and section twenty-one of the Bill of Rights of the Constitution of the State of Indiana, by authorizing the taking of private property for public use without due process of law, and without just compensation therefor.

The action was brought by the appellee against the city of Indianapolis,' and its board of public works, to enjoin the letting of a contract for the improvement of one of the public streets of said city. The separate demurrers of the appellants to the complaint were overruled, and judgment was rendered against the defendants below upon the demurrers. From that judgment the city and the board of public works appeal. The errors assigned are the rulings of the court upon the several demurrers.

It appears from the complaint that the appellee is the owner of lot number thirty-seven, in Highland Place addition to the city of Indianapolis; and that said lot abuts on Highland Place, a public street running north and south through said addition, the said street being within the limits of the said city; that the appellant, the city of Indianapolis, is a municipal corporation organized under an act of the General Assembly of the State of Indiana concerning the incorporation and government of cities having more than 100,000 population according to the last preceding United States census, approved March 6, 1891, and the acts of said General Assembly subsequently enacted amendatory thereof, and that said other defendants are the duly appointed, qualified, and acting members of the board of public works of said city. That the said board of public works, in the name and on behalf of said city, did, on the 14th day of March, 1900, adopt a resolution providing for the permanent improvement of the roadway of said Highland Place to a width of fifty-two feet from the south line of Twenty-first street on the north, to the south line of said Highland Place addition on the south, with creosoted wooden blocks; that said Highland Place, between said points, is of the uniform width of seventy-two feet from property line to property line, and that said roadway is of a uniform width of fifty-two feet from curb to curb; that said board, thereafter, caused notice of such resolution to be published in the Indianapolis Sentinel, a daily newspaper of general circulation in said city, once each week for 'two weeks, the last of which publications of said notice was made on the 21st day of March, 1900; that said notice named the 2nd day of April, 1900, as the day on which said board would receive and hear remonstrances from persons interested in, or affected by, said improvement; that no remonstrances were filed by any person, and that final action was then and there, on said second day of April, 1900, taken by said board confirming said original resolution without modification; that after ten days had elapsed from the time of taking such final action, to wit, on the 13th day of April, 1900, said board appointed three disinterested resident freeholders of said city as appraisers, who proceeded to appraise the property, exclusive of improvements thereon, abutting on said Highland Place, between the terminals of said proposed improvement, and filed their said appraisement with said board; that the cost of said appraisement was thereupon added to the cost of the said proposed improvement, and that the total cost of said improvement, if made, will be less than twenty-five per cent, of the aggregate appraised value of the property abutting on said part of said street proposed to be improved; that said board thereupon advertised for sealed bids for said improvement, to be received on April 27, 1900, pursuant to said resolution, and according to the plans and specifications adopted by said board; that, on said 27th day of April, 1900, several bids were submitted to and opened by said board to improve said street with various kinds of ereosoted wooden blocks, being the kind of blocks intended to be used by said board; that said resolution, advertisement, plans, and specifications, provide for the receiving of bids for making said improvement at so much per running or front foot of lots on each side of said street, the cost of said improvement to he assessed against the abutting lots -within the limits of said proposed improvement, without reference to the benefits to accrue to said lots, or any of them, and to be arbitrarily apportioned to, and assessed against, all of the lots along the line of said proposed improvement, at the same amount per running foot of said lots, regardless of the relative value per running foot of such lots, and without reference to the benefits accruing to said lots as compared with each other; that the lowest of said three bids is $5.89 and the highest $6.99 per running foot front on each side of said street; that there are eighty-two lots in said addition, and that all of them are of the same depth; that eighty of them are of the same width front and rear; that two are irregular in shape, and differ in size from said other lots; that the part of said street so propsed to be improved is intersected by another street of said city sixty feet in width; that still another public street, thirty-three feet wide, enters paid Highland Place within the line of said improvement, but does not cross the same, and that a certain public alley in said city, twelve feet in width, enters said street within the line of said improvement, but does not cross the same; that by the terms of said resolution and proposed contract, one-half of the cost of paving said intersecting street, and one-half of the cost of paving said entering street, and one-half of the cost of paving said entering alley will be assessed pro rata against the lots abutting on that part of said Highland Place proposed to be improved, and the remaining one-half of the cost of said intersecting street and of said entering street and alley will be apportioned upon the lots abutting on said intersecting and entering streets and alley for such distance from said Highland Place as is provided by law; that appellants have not yet acted on said bids, but that they are threatening to, and will proceed to do so, unless restrained and enjoined by the order of the court. It is further alleged that said lots are of unequal value, some being worth more than others per front foot, both with and without the improvements thereon; that some of said lots are improved with costly buildings, while others are improved with much less valuable structures, and still others are wholly unimproved, and that they are in proportion to their areas of unequal frontage on said Highland Place; that the benefits accruing to appellee’s property will not be as much as the benefits accruing to many of the lots, having the same frontage, belonging to other persons; that the only statute under which the appellants acted, or assumed to act, and under which they propose to act is the act of-March 6, 1891, and the subsequent acts amending, and re-amending said amendatory acts; that said acts are invalid, unconstitutional, and void, and that the appellants ought not to be permitted to award said contract for the improvement of said street under the said resolution or bids.

The complaint does not allege that the value of the appellee’s lots will 'not be enhanced to an amount equal to the cost of the proposed improvement assessable against them in this proceeding.

The propositions submitted by counsel for appellee in support of the complaint are these:

(1) The several statutes of the State of Indiana which, when taken together, are commonly known as the Indianapolis City Charter, in so far as the same relate to the improvement of streets, are in violation of section twenty-one of the Bill of Rights of the Constitution of the State of Indiana, and also in violation of the fifth and fourteenth amendments of the Constitution of the United States.

(2) The said charter provides for the taking of private property without just compensation.

(3) The said charter provides for the taking of private property without due process of law.

(4) The said charter provides for an unjust and unlawful exercise of the taxing power.

(5) Whenever a local assessment upon an individual is not grounded upon and measured by the extent of his particular benefit, it is, pro tanto, a taking of private property for public use without any provision for compensation.

(6) The charter affords no opportunity to a property owner to be heard by any tribunal having jurisdiction or authority to determine the benefits before an assessment can finally be collected.

(7) The charter having prescribed a fixed method by which the board of public works shall make assessments, such board cannot do otherwise than to follow such fixed method.

(8) The provision of the charter that in any suit to foreclose the lien of an assessment any property owner may contest the amount of such assessment does not give the property owner the right to have such assessment fixed according to benefits.

(9) The provision of the charter that in any suit to foreclose the lien of an assessment the property owner may contest the amount of such assessment must be construed in connection with the other provisions of the charter.

(10) When that part of the charter providing for contesting the amount of an assessment in a foreclosure suit is construed in connection with the one fixing a rule by which the board of public works is required to make such assessments, then such provision for contesting the amount of the assessment is not broad enough to raise the question of benefits, but merely raises the question whether such board made any error in computing the amount of the assessment.

(11) The charter makes no provision for the payment, out of the general fund, of the cost of improvements in excess of benefits.

(12) The provision of the charter that in all suits to foreclose assessment liens the plaintiff shall recover the amount of the assessment, interest, and attorney’s fees, is in conflict with that portion giving the property owner the right to contest the amount of the assessment.' As one section negatives the other, neither has any validity.

(13) While the charter and what is known as the Barrett law both provide for a front foot assessment, they are widely different as to the rights of the property owner. The Barrett law provides for a hearing before a tribunal having authority to review, alter, or amend, the assessment on the basis of actual special benefits received, while the charter provides only for a contest as to the amount of the assessment.

The several provisions of the act in question (Acts 1891, p. 167), necessary to be considered, are the following:

“See. 67 (§6870 Ilorner 1897). The department of public works shall have for its head a board of three members, to be appointed by the mayor, not more than two of whom shall be of the same political party. * * * No member of said board shall have any authority to act on behalf of the same, except pursuant to an order of the board, regularly made at a meeting of the same, at which meeting a majority of said board shall have been present. All actions of the board shall be recorded by the clerk thereof, together with the record of the vote of each member, where the vote is not unanimous. The board shall make rules governing the time and place for holding regular and called meetings, and for giving notice thereof.”

“Sec. 59 (§6872 Horner 1897). The board of public works shall have power * * t * to lay out, open, change, vacate, and to fix or change the grade of any street, alley, or public place within such city, and to design, order, contract for, and execute the improvement or repair of any street, alley, or public place within such city.”

“Sec. 62 (§6875 Horner 1897). All the expenses incurred or authorized by such board of public works shall be payable out of the general funds of such city appropriated to the use of such board and available for the particular purpose, except where this act specifically directs that the same is to he paid for by assessments against property holders.”

“Sec. 63 (§6876 Horner 1897). Whenever the board of public works shall desire to appropriate or condemn, for the use of such city, any property, real or personal, or to open, change, lay out or vacate any street, alley, or public place within such city, including proposed street or alley crossings of railways in cases where tlie proposed street or alley is to cross a railway, it shall adopt a resolution to that effect, describing the property which may be injuriously or beneficially affected, and shall cause notice of such resolution to be published in some daily newspaper of general circulation in such city once each week for two weeks. Such notice shall name a date, after the last day of publication, at which such board" will receive or hear remonstrances from persons interested in or affected thereby. Said board shall consider such remonstrances, if any, and thereupon take final action, confirming-, modifying or rescinding their original resolution. Such action shall be final and conclusive upon all- persons.”

“Sec. 73 (§6886 Horner 1897). Whenever the board of public works shall order the improvement -of any street, alley, sidewalk or other public place in such city, in whole or in part, it shall adopt a resolution to that effect, setting forth a description of the place to be improved, and full details, drawings and specifications for such work. Notice of such resolution shall be published, remonstrances heard, said original resolution modified, confirmed or rescinded, in the same manner as heretofore more specifically provided hy this act with regard to the condemnation of property and the opening of streets. If such original resolution be confirmed or modified it shall be final and conclusive on all persons, unless within ten days thereafter, one-half of all the resident freeholders upon such street, alley, or proposed improvement, remonstrate against such improvement. In case of such remonstrance, the improvement shall not take place unless specifically ordered hy an ordinance within sixty days thereafter, passed by a two-thirds vote of the ‘council, and approved by the mayor.”

‘‘Sec. 74 (§6887 Horner 1897). If said board shall finally order such improvements, and shall advertise for bids and let the contract for the same, the cost of any street or alley improvement shall be estimated according to the whole length of the street or alley, or so much thereof to be improved as is uniform in the extent and kind of the proposed improvement per running foot, and the total cost thereof, exclusive of one-half the cost of street and alley intersections, shall be apportioned upon the lands or lots abutting thereon. The remaining one-half cost of street and alley intersections shall be apportioned upon the lands or lots abutting on the street or alley intersecting the street or alley under improvement for a distance to the street line of the first street extending across the said intersecting street or alley in either direction from the street or alley improved. * * * Such city shall be liable to the contractor for the contract price of such improvement to the extent of the moneys actually received by such city from the assessments for such improvements hereinafter provided for, and the owners of property bordering on such street or alley shall be liable to the city for their proportion of the cost, exclusive of one-half the cost of street and alley intersections, in the ratio of the front line of their land or lots, whether platted or not, owned by them, to the whole cost [line] of the improvement for that part of the said street or alley on which said land or lots are located, and which is uniform in extent and quality of improvement. And the owners of lots or lands on the streets or alleys intersecting or entering into such street or alley shall be liable to the city for their proportion of the cost of improving the one-half of the street and alley intersections, in the proportion that their front line on said street or alley bears to the sum of the length of the front lines of said lots or lands abutting on said street or alley for a distance, as provided above, from the street or alley under improvement. Said city shall have separate and several liens upon such lands or lots from the time the contract for such improvement is finally let, for the respective assessments against each lot or parcel of land.”

“See. 75 (§8888 ITorner 1897). Lots or lands bordering on such street or alley shall be assessed and liable to the payment of such assessment primarily, and if not sufficient to pay for the same, then the lots or lands shall be liable for a distance back from the front line along such street or alley of fifty feet, whether the same shall be owned by the same or different persons. In case said fifty feet shall not sell for enough to pay such assessment, then the ground for a distance of 100 feet farther back shall be liable to sale; and in case of unimproved lands or unplatted ground, if said ,150 feet fail to sell for enough to pay the assessment, the whole of such land shall be liable to sale. * * * In all suits brought to foreclose such liens the plaintiff shall recover the amount of the assessment, principal and interest, together with a reasonable attorney’s fee, and the court shall order that salé shall be made without relief from valuation or appraisement laws. * * * Suits to foreclose may be brought by any contractor entitled to enforce any liens, or any assessment or assessments, against a person or persons who have made default in payment thereof, or by his assignee. * * * Foreclosure suits may be instituted for the enforcement of assessments and liens as herein provided by the holder of any bonds or coupons in cases where bonds are issued in anticipation of the collection of assessments against a party or parties in default, for the collection of such bonds or coupons and the enforcement of the lien or assessment securing the same, as well as by any contractor or his assignee • where no bonds are issued. In such foreclosure suits no defense shall be allowed upon any irregularity in the proceedings making, ordering or directing such assessment, nor shall any question as to the propriety or expediency of any improvement or work he therein made. A property owner who has not, or property owners who have not, signed a waiver or exercised or claimed the option to pay in instalments, may, however, contest the amount of his or their assessment, but where a property owner or property owners has or have exercised the option to pay in instalments arid has or have signed a waiver or exercised the option to pay in instalments such property owner or owners shall be concluded thereby and shall not be permitted to set up any defense whatsoever.”

Sections 78 and 81 provide for the deposit of the assessment roll with the treasurer, the preparation of what is called the local assessment duplicate, notice by the treasurer to each person affected by the same, and suit'for the recovery of the amount due. The issue of street or public improvement bonds, payable out of the fund actually paid to and collected by the city on such account, in anticipation of'the collection of such assessments, and the enforcement of the payment of the assessments evidenced by such bonds, by sale of the lands and lots liable therefor by the county treasurer, are also provided for. After the issue of such bonds, it is declared that no suit shall lie to enjoin the collection of any assessment, and that the validity of the same shall'not be questioned, but that all property owners shall be conclusively estopped and precluded from assailing the effectiveness or validity thereof in any manner.

It will be observed that two opportunities to be heard, after full notice, are granted to the lot owner. Section 73 of the act of 1895 (Acts 1895, p. 400), contains the following : “Whenever the board- of public works shall order the improvement of any street, * * it shall adopt a resolution to that effect, setting forth a description of the place to be improved, * * *. Notice of such resolution shall be published, remonstrances heard, said original resolution modified, confirmed or rescinded, in the same manner as heretofore more specifically provided by this act with regard to the condemnation of property and the opening of streets.”

That part of the statute which relates to the condemnation of property and the opening of streets, as has been seen, expressly declares that notice of such condemnation proceedings, describing the property which may be injuriously or beneficially affected, and'fixing a date for the hearing of remonstrances 'from persons interested in, or .affected thereby, must be given by publication in a daily newspaper of general circulation in such city, once each week for two weeks. The act further provides that remonstrances may be received from persons interested in, or affected by, such proceedings, and that the board of public works shall consider such remonstrances, and take final action upon them, confirming, modifying, or rescinding the original resolution.

Whenever a public street or alley is to be improved, the statute requires that notice of the resolution of improvement shall be published, remonstrances heard, such original resolution modified, confirmed, or rescinded, in the same manner as in the. case of the condemnation of property and the opening of streets. Would the enforcement of this statute against the lots of the appellee in the proceeding to improve the street known as Highland Place street deprive him of his property without due process of law, or just compensation therefor? We think the question must be answered in the negative.

It has been held that due process of law requires an orderly proceeding adapted to the nature of the case, in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights. Kizer v. Town of Winchester, 141 Ind. 694; Stuart v. Palmer, 74 N. Y. 183; Garvin v. Daussman, 114 Ind. 429, 5 Am. St. 637; Cooley on Const. Lim., 355; Hagar v. Reclamation Hist., 111 U. S. 701, 4 Sup. Ct. 663, 28 L. ed. 569; 2 Kent’s Com., 13; Wynehamer v. People, 13 N. Y. 378; Rowan v. State, 30 Wis. 129, 146; Ex parte Ah Fook, 49 Cal. 402; People v. Board, etc., 70 N. Y. 228; San Mateo v. Southern Pacific R. Co., 13 Fed. 722, 8 Am. & Eng. R. Cas. 1, 27.

In Happy v. Mosher, 48 N. Y. 313, 317, it is said with reference to “due process of law”: “It need not be a legal proceeding according to the course of the common law; neither must there be personal notice to the party whose property is in question. -It is sufficient if a kind of notice is provided by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to defend.”

In Wurts v. Hoagland, 114 U. S. 606, 5 Sup. Ct. 1086, 29 L. ed. 229, the constitutionality of a law of New Jersey, regulating the procedings of the drainage of marsh lands, was under consideration.' In deciding the case, the law was thus declared: “As the statute is applicable to all lands of the same kind, and as no person can be assessed under it for the expense of drainage without notice ansd opportunity to be heard, the plaintiffs in error have neither been denied the equal protection of the laws, nor been deprived of their property without due process of law, within the meaning of the fourteenth amendment of the Constitution of the United States. Barbier v. Connolly, 113 U. S. 27, 31, 5 Sup. Ct. 357, 28 L. ed. 923; Walker v. Sauvinet, 92 U. S. 90, 23 L. ed. 678; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Hagar v. Reclamation District, 111 U. S. 701.”

In Davidson v. New Orleans, supra, Mr. Justice Bradley, in a concurring opinion, said: “I think, therefore, we are entitled, under the fourteenth amendment, not only to see that there is some process of law, but ‘due process of law,’ provided by the state law wdien a citizen is deprived of his property; and, that in judging what is ‘due process of law,’ respect must be had to the cause and object of the taking whether under the taxing power, the power of eminent domain, or the power of assessment for local improvements, or none of these; and if found to be suitable or admissible in the special case, it will be adjudged to be ‘due process of law’; but if found to be arbitrary, oppressive, and unjust, it may be declared to be not ‘due process of law.’ Such an examination may be made without interfering with that large discretion which every legislative power has of making wide modifications in the forms of procedure in each case, according as the laws, habits, customs, and preferences of the people of the particular state may require.”

In re Ryers, 72 N. Y. 1, it is said: “Due process of law in the fourteenth amendment to the United States Constitution does not mean by a judicial proceeding.” See, also, McMillen v. Anderson, 95 U. S. 37, 24 L. ed. 335; Reagh v. Spann, 3 Stew. (Ala.), 100, 108; Risser v. Hoyt, 53 Mich. 185, 201, 18 N. W. 611.

The statute under examination secures to each property holder, whose lot or land may be affected by the proposed improvement, notice of the proceeding, and the right to be heard before the board of public works by way of remonstrance ; no assessment against a lot affected by the improvement can be enforced except by suit to foreclose it in a court of competent jurisdiction; and, in such suit, the property holder, who has not signed a waiver of all defenses and irregularities, or exercised or claimed the option to pay in instalments conferred by the statute, is expressly authorized to contest the amount of his assessment.

It is contended, however, by counsel for appellee that the last mentioned provision of the- statute authorizes only an inquiry as to the mathematical correctness of - the assessment made upon the basis of the front-foot rule. It is argued that this must be so because the statute does not give to the property owner the right in such foreclosure suit to have the assessment made according to the benefits received by the separate lot, or expressly confer on the court the power to make an assessment on that basis. It is also objected that the statute fixes the sum of the recovery at the amount of the assessment, interest, and attorney’s fees, and that this provision is inconsistent with the supposed privilege of contesting the amount of the assessment on the ground that it exceeds the special benefits received. The additional difficulty is suggested that, if the benefits should be found to be less than the cost of the improvement, no provision is made for the payment of the deficiency to the contractor.

In a proceeding of this kind, the one thing in which the property owner is more seriously interested than any other is the proportionate share of the burden of the cost of the improvement which may lawfully be imposed upon his lot or land. The constitutional principle which protects the lot owner from an assessment against his property in excess of the special benefits received by the lot from-the improvement is a limitation and restriction upon the amount of such assessment. It does not require that statutes making provision for the improvement of streets and other public ways shall prescribe any particular mode .of ascertaining and assessing benefits. If an assessment against a piece of land exceeds the special benefits received by the tract from the improvement, the principle referred to would prevent the collection of the excess of such cost over the benefits. If the statute under which the assessment was made prohibited or excluded the consideration of benefits, and the apportionment of the cost of the improvement with reference thereto, the rule would render such statute void. The principle involved is not a new one. The courts, generally, have recognized the proposition that such special benefit to the particular lot is the legal foundation of exactions for the construction of public improvements, which not only enhance, the value of-the abutting lots, but are beneficial to the public also. The unsettled point has been whether in making provision for the payment of the cost of such improvement the legislature had the power to create, or authorize the creation of, a taxing district, and to declare, conclusively, that the property within its limits should be deemed benefited to the amount of the whole cost of the improvement, and in an equal ratio per front foot, and liable to assessment in that ratio; or, whether such assessments should be limited to the amount of the special bene-. fits actually received by each separate lot or tract affected by the improvement. Until very recently, the power to create such taxing district, and to subject the property therein to the payment of the full amount of the cost of the improvement, was generally recognized, and even now many courts are reluctant to admit that such power may not be exercised without violation of the provisions of the Constitution protecting the owner of private property from unlawful exactions on account of such improvements. Assuming, however, that the correct rule is that the assessment for such improvements must be according to the benefits received by the property assessed, such a construction should be given the provisions of the statute under examination,,, if its language will authorize it, as will enable the court to uphold it. The right to contest the amount of the assessment, as we understand the statute, includes the right to show that the assessment is erroneous because it exceeds the sum of the special benefits received by the lot assessed. The words of the statute should receive a fair interpretation, and we cannot restrict the import of the clause “shall have the right to contest the amount of the assessment” to the correction of mere clerical mistakes, without doing violence to the letter and spirit of the act.

But, it is contended that, if the fact that the assessment upon the particular lot exceeded the benefits received by such lot should be judicially ascertained in such foreclosure suit, the court would be without authority to make a correct assessment founded upon special benefits, for the reason that no basis of assessment is authorized by the statute except what is known as the front-foot rule. In our opinion, this conclusion does not follow. Pew of the powers which may be exercised by a municipal corporation are more important, or more necessary to the convenience and welfare of its citizens than the power to lay out, improve, and repair its streets and thoroughfares. This attribute is included in the grant of powers in every municipal charter whether general or special. It is a fundamental principle of statutory interpretation that the general grant of a power carries with it the right to employ the means essential to its legitimate exercise. The statute, under which the city of Indianapolis is incorporated, in its enumeration of the powers of the municipal government to be exercised through the board of public works, declares that the board shall have power “To lay out, open, change, vacate, and to fix or change the grade of any street, alley, or public place within such city, and to design, order, contract for, and execute the improvement or repair of any street, alley, or public place within such city.” Acts 1891, §59 (Acts 1891 p. 167), §3830 Burns 1894, §6872 Horner 1897. The power “to design, order, contract for, and execute the improvement” is the principal thing. The means by which the cost of the improvement is to be assessed and collected are secondary.

The lots and lands abutting upon the improvement are, unquestionably, subject to assessment on account of such improvement, and, under the rule spoken of, the only limitation upon such liability is that such assessment cannot lawfully exceed the amount of the special benefits received by such lots and lands. Any mode of assessment prescribed by the legislature, whether the front-foot rule or any other, is to be regarded as subject to this condition, and, unless inquiry into the question of special benefits is excluded or prohibited by the statute, such inquiry may properly be made by any tribunal before which the question of the' collection of an assessment is brought.

Our conclusion is that the statute in question which secures to each property holder, whose lot or laud may be assessed for the improvement of a street, notice of the proceeding, and the right to be heard by way of remonstrance against such improvement, together with the right to contest the amount of the assessment in any suit brought to enforce the same, sufficiently provides for the protection of the rights of the owners of the lots, and is not objectionable on the ground that it contravenes the fifth and fourteenth amendments of the Constitution of the United States, or the twenty-first specification of the Bill of Rights of the Constitution-of the State of Indiana.

The ground of the judgment in Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. ed. 443, was stated to be: “That the assessment against the plaintiff’s abutting property was under a rule which excluded any inquiry as to special benefits, and the necessary operation of which was, to the extent of the excess of the costs of opening the street in question over any special benefits accruing to the abutting property therefrom, to take private property for public use without compensation.”

The court say that: “The assessment was by the front foot and for a specific sum representing such cost, and that sum could not have been reduced under the ordinance of the village, even if proof had been made that the costs and expenses assessed upon the abutting property exceeded the special benefits. The assessment was in itself an illegal one because it rested upon a basis that excluded any consideration of benefits. A decree enjoining the whole assessment was therefore the only appropriate one.”

And further: “We have seen that, by the Revised Statutes of Ohio, relating to assessments, the village of Nor-wood was authorized to place the cost and expense attending the condemnation of the plaintiff’s land for a public street on the general tax list of the corporation, §2263; but if the village declined to adopt that course, it was required by §2264 to assess such cost and expense ‘on the abutting and such adjacent and contiguous or benefited lots and lands in the corporation, either in proportion to the benefits which may result from the improvement or according to the value of the property assessed, or by the front foot of the property bounding and abutting upon the improvement’; while by §2211, whenever any street or avenue was opened, extended, straightened or widened, the special assessment for the cost and expense, or any part thereof, ‘shall be assessed only on the lots and lands bounding and abutting on such part or parts of said street or avenue, so improved, and shall include of such lots and lands only to a fair average depth of lots in the neighborhood.’ It thus appears that the statute authorizes a special assessment upon the bounding and abutting property by the front foot for the entire cost and expense of the improvement, without taking special benefits into account. And that was the method pursued by the village of Norwood The corporation manifestly proceeded upon the theory that the abutting property could be made to bear the whole cost of the improvement, whether such property was benefited or not to the extent of such cost.”

The Ohio statute authorized the village to adopt an alternative proceeding which excluded the consideration of benefits. In the acts before us, we find nothing which forbids or excludes an investigation as to the special benefits, or which prevents an assessment on that basis. This court held in Adams v. City of Shelbyville, 154 Ind. 467, that the assessment by the front-foot rule, under the general law for the incorporation of cities, is to be treated as prima facie correct ; but that it is not exclusive of the right to have an assessment made according to benefits. We are satisfied that this is the correct interpretation of the statutes now before us, and we discover nothing in this view of the law inconsistent with the principles stated in Norwood v. Baker. Shroder v. Overman, 61 Ohio St. 1, 55 N. E. 158; Sears v. City of Boston, 173 Mass. 71, 53 N. E. 138, 43 L. R. A. 834; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Hagar v. Reclamation District, 111 U. S. 701; Spencer v. Merchant, 125 U. S. 345, 8 Sup. Ct. 921, 31 L. ed. 763; Garvin v. Daussman, 114 Ind. 429; Reinken v. Fuehring, 130 Ind. 382, 30 Am. St. 247; Law v. Johnston, 118 Ind. 261; Kizer v. Town of Winchester, 141 Ind. 694; Adams v. City of Shelbyville, 154 Ind. 467.

There is nothing in the provision that the amount of the recovery shall be the sum of the assessment, with interest and attorney’s fees, inconsistent with the right to contest the amount of such assessment in the manner indicated in this opinion. The evident meaning of this clause of the statute is that the measure of recovery shall be such sum as may lawfully be assessed against the land with the interest and attorney’s fees added thereto.

The question as to the payment to the contractor of the difference between the sum which may be collected on account of the assessments for the improvement, and the total cost of the work, does not arise in this case, and we do not feel called upon to decide it. Neither is it necessary for us to express an opinion upon the provisions of the statute in regard to the issue of improvement bonds in anticipation of the collection of the assessments.

Some of the averments of the complaint are very broad as to the character of the resolution passed by the board of public works providing for the improvement of the street, but the pleading does not attempt to set out the contents of that resolution, and these averments seem to be statements of conclusions only. The question of the sufficiency of the complaint in this respect must be determined by reference to the provisions of the statute, and not by the character of its averments concerning the legal effect of the resolution.

Judgment reversed, with instructions to sustain the demurrers to the complaint, and for further proceedings not inconsistent herewith.

Baker, O. J., and Hadley, J., dissent.