The municipal law of Indiana, including the general school law, general election law, tax law, and all statutes of the state appertaining to cities and towns; with notes of decisions, with a complete list of forms

Preface

THIS book occupies almost a new field in our State. Twenty years ago Wild's small work on the Municipal Corporations of Indiana was published. There are many lawyers who never saw it, and many more who have forgotten it. Indiana decisions were then small in number, and but few forms were used in that work; consequently it was little more than a compendium of the statutes. In the twenty years since its publication a multitude of decisions have been rendered by our courts, containing almost innumerable points of practice relative to municipal corporations. It has been my endeavor to gather up these points, place them in order, and to bring all the decisions of our courts down to the latest date, many of them being at the time of writing only in manuscript.

Forms have been drafted and placed under the sections to which they appertain. That this will be of great aid to municipal officers and to members of the profession the author, from his past experience, feels assured. The task of drafting them was not a small one. Many of them have stood the test of the courts.

The general school, election, and tax laws are made applicable to municipalities by statutes, and they naturally occupy a part of this volume. Here the forms have been omitted for the reason that such forms as are necessary are furnished by the State and Counties.

The school law of the State has been published for several years by the Superintendents of Public Instruction, with notes of the decisions of the Supreme Court, (many of which the writer, several years ago, prepared for that official,) and containing comments of the several officers who have held the office of Superintendent, and also those given to that officer by the Attorney-Generals of the State. These official

IV PREFACE.

opinions have been retained, and due credit given to the authors of them. No opinions of the present incumbents of those two offices, or their immediate predecessors, have been used, for the reason that none of them at the time of writing had been pubhshed in an official edition of the school law.

Inquiry and experience has taught the writer that a wide divergence in the practice of officers of towns exists in this State; and such being the case, he can not help running counter to the accepted notions of practice and proceedings in some of our towns. By a careful scrutiny of the laws he has arrived at the conclusions stated in this work, and from careful study believes them to be correct, whatever may be the opinion entertained or practice followed by others. Upon these points of dispute he does not expect to pass uncriticised.

The plan adopted in this work is that followed in the Revised Statutes of 1881,

The writer is under obHgations to Hon. William L. Taylor, four years City Attorney of Indianapolis, for many valuable suggestions, and for a number of approved forms; and to the author and pubHshers of '-'Coppock's Annotated Ohio Municipal Code" for a number of valuable notes.

W. W. Thornton.

Indianapolis, Ind., September i, 1891.

CONSTITUTIONAL PROVISIONS.

The Municipal Law of Indiana

Chapter I. Constitutional Provisions

1. Bill of Rights. 8. Education. Schedule of Constittition.

2. Suffrage aud Elec- 10. Fi7iance.

tiojts. 11. Corporations.

4. Legislative. 13. Municipal Debt.

6. Administration. 15. Miscellaneous.

7. judicial.

ARTICLE I.— BILL OF RIGHTS.

SEC.

66. Compensation for service.

Sec. 66. Compensation for service. No man's particular services shall be demanded without just compensation. No man's property shall be taken by law without just compensation ; nor, except in case of the State, without such compensation first assessed and tendered.

1. This section does not prohibit the seizure of a corporation's franchises for a violation of its charter, let the eii'ect upon private property be what it may, I B. 267; nor the change of a county seat, i B. 285; even though a court-house was donated by the citizens of the place from which it is removed, 4 B, 208. (The constitution of 1816 did not require that damages be first assessed or tendered, 4 B. 505; 5 B. 384; 8 B. 246, 266.) Land may be taken for a canal; or for " hydraulic works" propelling mills and factories; or to build mills or factories, 8 B, 266; grading a street, 6 Ind. 237; vacating streets, 7 Ind. 38; building a railroad in the street, 7 Ind. 479, 522; or crossing a turnpike, no Ind. 5; or taking land for a railroad, 7 Ind. 711; 27 Ind, 260; or a street, 19 Ind. 326; or a turnpike, 23 Ind. 623; 26 Ind. 53; or plank-road, 26 Ind. 53; waterworks, 41 Ind. 364; telegraph line, 52 Ind. 67; for a ditch, 103 Ind. 486; for a railroad in the street, 34 Ind. 304; 74 Ind. 29; 48 Ind. 178; 7 Ind. 479; 9 Ind. 467; but this section does not apply to consequential damages, 6 Ind. 237 (see 9 Ind. 433); 19 Ind. 326. See § 3073, note; § 3170, 7iote; nor to the taxing power, () Ind. 74; 29 Ind. 305; 53 111. 105; 57 111. 130; 94 111. 604 ; (but street assessments is not the taxing power, 34 111. 203); nor to witness fees in a criminal case, 8 Ind. 467; nor service rendered by otBcers in such cases, 21 Ind. 32; nor to regulation of rates for telephone companies, 105 Ind. 250; nor to laying a street railroad in the street, 78 Ind. 261.

2. Land, or materials, taken for a public hightvay is taken for the State, and need not be paid for before taking, 11 Ind. 420; but land can not be taken, even if paid for, for o. private road, 43 Ind. 455; 25 la. 540; 34 Ala. 311; 39 111. no; 27 Mo. 373; 24 Wis. 89; 4 Hill (N.Y.) 140.

3. This section does not prescribe the mode of ascertaining the damages or compensation to be paid, i Ind. 48; 62 111. 38. Therefore the method prescribed by an act for ascertaining damages must be followed in the way pointed out by it, I Ind. 285. No other can be pursued, 4 Ind. 431; and the way pointed out must be strictly followed, 7 Ind. 711; but see 9 Ind. 123; and no property can be taken except as allowed by statute, 47 111. 463. The time within which to apply for compensation may be limited; and if none is applied for within that time, none thereafter can be obtained, 4 Ind. 431. If no statute has been passed authorizing the assessment of damages, then the owner of land taken may sue directly for all damages he has suffered by reason of the seizure of the land, 9 Ind. 433; 7 Ind. 479. Or he may enjoin the taking, 100 Ind. 206; 23 Ind. 623.

4. An act authorizing payment in or tender of anything but legal tender is unconstitutional, 8 B. 246 (see 8 B. 337).

5. "The amount of damages allowed for taking land is the value of the land taken at the time of the seizure (not at the time of the trial, 8 Ind. 74), less the amount the complainant's adjoining land had been increased in yalue by the location of the proposed works. He is entitled to be recompensed for all the actual injury he may sustain — all circumstances considered — by the measure of which he complains, 84 Ind. 496; 7 B. 209; 5 B. 384; 118 111. 206; iii 111. 283; 70 111. 347.

6. This section does not confer the right to take, but recognizes it, 97 111. 506; it limits the right, 34 111. 203; there is no restraint to the extent the right may be given by the legislature, so long as the property is taken for public use, 23 111. 202, and not private, 87 111. 317; 7 111. App. 474.

7. Until the damages are assessed according to law and paid or tendered, the title does not vest in the person procuring its condemnation, 80 111. 482; 7 111. App. 460; but damages may be paid by benefits accruing to the person damaged, 51 111. 63; 62 111. 38; 66 111. 510; 38 111. 322. 5 B. 384; 84 Ind. 496.

8. An assessment for improvements to lots on the basis of frontage can not be made, because of its manifest inequality, 34 111. 203; 40 111. 211; 41 111. 306. See 94 111. 604.

9. The phrase " private property " includes the right of user and enjoyment of the property, 19 111. App. 67. What is a "just compensation " involves the determination of a judicial question, 61 111. 115; 59 111. 286.

ADDITIOXAL XOTE.

10. The particular purpose for which the power of eminent domain shall be exercised, rests entirely with the legislature, 4. O. S. 308; 98 U. S. 403; 116 111. 449; 58 Mo. 175. The power having been granted, the grantee is vested with the determination whether it shall be exercised, and when and to \vhat extent, within the power, 22 Minn. 372; 116 111. 449. The power must be strictly pursued, {defect in notice), 11 O. S. 219; 34 Mich. 36; 23 W. Va. 203; {defect in petitioti for), 16 La. Ann. 393; {proceeding by resolution instead of ordinance), 33 N.J. L. 72; {improper recomme?idation board), y8 Mo. ^1; {insufficieiit designation of land), 10 Gray, 40. Only proof of fraud, or bad faith, or that the property is intended to be used for purposes other than that for which it is appropriated, -will warrant the interference of the courts, 19 O. S. 308; 4 O. S. 299. Under the principle of strict construction, ^vhere the estate taken is not defined, only such an interest can vest under proceedings as is necessary to accomplish the purpose of the appropriation, 68 N. Y. i, 591; 10 Kas. 603; 125 Mass. 226.

11. Streets. A municipal corporation Avhich has appropriated property once and neglected to take possession, may exercise the power a second time after six months, 42 O. S. 239; it may appropriate the necessary easement for a slope for a fill, but the owner is not entitled to compensation as for the fee, 34 O. S. 267. Street or highway is a public use, although wholly to afford access to church or cemetery, 33 Ind. 80; 63 Pa. St. 471; and may accommodate but one family, 22 Vt. 44; "15 Ark. 43; 5 Graft. 265; 61 la. 89; 64 Id. 198; and may be merely a cul-de-sac, 12 Kas. 17; 56 Wis. 429; 87 111. 189; 3 Keys 35; and may be merely to accommodate pleasure-seekers; 11 Allen 530; 35 N. H. ^34.

3] BILL OF RIGHTS. [§ 66

12. The following i.ses of streets are held to be legitimate and not to require additional compensation: for sczvers a7id drains, 21 O. S.499; 2 C. S. C. R. 462; 30 Mich. 24; 13 Allen, 146; 28 Conn. 362;/"6»r tt'rt/er-/'//^?^, 29 Hun. 245; 27 Id. 72; for gas-fifes, 90 N. Y. at p. 161; 32 Vt. 367; for layijig subterranean -vires and setting poles and stringijig ivires for lighting by electricity, 65 How. Pr. 407; iS Jones & S. 464; 51 lb. 280; Contra, 9 Bull. 65; for street railways, 14 O. S. 524; 35 Cal. 325; 125 Mass. 515; for setting poles for electric street railzvays, 3 O. C. C. 425; for cisterns for sprinkliiig streets and extinguishing

fires, 32 Vt. 367; for statuary and in07iuments, 2 Hun. 146.

13. The following are held to require compensation: for telegraph and telephone lines, 2 O. C. C. 259; 42 N.J. Eq. 141; 107 111. 507; 11 Abb. N.C. 440; Contra, 136 Mass. 75; 88 Mo. 258; for public markets, 15 Fla. 306; 34 N.J. L. 201; 5 Porter (x\la.) 279; for public pounds for strays or for jail, 15 Fla. 306; 63 N. H. 605; for railroads, 40 O. S. 496; 38 O. S. 41 ; 3 O. S. 330.

14. Markets. Property taken for, is for public use, 28 Hun. 515. But a street can not be used for, without compensation, 34 N. J. L. 201. Illegal erection of, may be enjoined, 29 Alb. L.J. 201; 6 Bull. 142.

15. Parks. A public use, 45 N. Y. 234, even though located only in the vicinity of a city or town, 58 Mo. 175. Property may be taken on side of an avenue to be kept open for ornament, 48 Barb. 9; and parks may be laid out over grounds used by a railroad, but use therefor can not be interfered with without special authority, 63 Barb. 282. General authority to layout a railroad does not authorize its location through a park, 53 N. Y. 574; 20 Hun. 201; 16 Pick. 87.

16. Gas-vjorks and -ivater-works. A public use, 62 Cal, 182; 63 Barb. 437^

17. School-houses and grotcnds. A public iuse, 68 Pa. St. 170; and ground sufficient for yard may be taken, 33 Vt. 271.

18. Cemeteries. A public use when the right of burial is public and general, or when it is controlled by the public authorities; 20 Conn. 466; 103 Mass. 106; 46 Vt. 218; 43 Conn. 234. And it is no objection that the privilege of burial must be paid for, 53 Conn. 551. But an association can not exercise the power and vest the title in it and lot owners, as private property, 53 Conn. 551; 66N.Y.569.

19. Validity of latv. An act is constitutional which provides that persons who claim damages by an appropriation of private property for public use, shall file claims for damages in a certain way within a specified time, or be held to have waived the same, 19 O.S. 173; 22 O. S. 275; 24 O. S. 467. If the statute provides that the claim shall be made in writing, the right to compensation will be deemed waived, if verbal claim only is made, 24 O. S. 467. The rule requiring the claims to be filed is not in the nature of a statute of limitations, whereby a right secured by the constitution is barred, or of a statute declaring a forfeiture, but is a declaration of a rule of evidence, by which a waiver of compensation maybe established, 22 O. S. 275.

20. Right of action. The owner of a lot abutting vipon an improvement, who files his claim as provided by law, is entitled to recover for any property actually destroyed by making the improvement, as hedges, fences, gates, and the like, 10 Rec, 705. The consequential injury to access is in the nature of a taking, and may be recovered for in Ohio, i O. C. C, 558. The owner may recover damages to an unimproved lot, if an unreasonable grade is made in front of it, 7 O.S. 469. He may recover if he has improved his lot with reference to a regularly established grade, and such grade has been changed to his injury, 15 O. 474; 18 O. 229; 7 O. S. 469; i Bull. 125; 12 Lull. 246; or if he has improved with reference to the grade of u public highway, as an " old road," or a " county road," or a " turnpike," aiJ such grade is changed to his injury, 7 O. S. 469; 30 O. S. 133; 10 Rec. 705. He may likewise recover where he has improved before any grade has been established, if he anticipates a reasonable grade to Avhich the street is built, and the grade is afterwards changed to his injury, 34 O. S. 328; or, if an unreasonable grade is established in the first instance. Ibid. But there can be no recovery for injury to an unimproved lot by the change of an existing to another reasonable grade, 7 O.S. 469; or v.-here improvements have been made without reference to any existing grade and a reasonable grade is established, 35 O. S. 328. Neither can he recover for a mere change of grade to his injurj, if his lot does not abut on the improvement, I C.S.C.R, 154; 16 O.S. 163. The establishment of a grade by public authority is not conclusive of reasonableness, but is a fact to be considered in determining whether it is reasonable or not, 3 O. C.C. 593. Corporation, after establishing a grade, must proceed within a reasonable time to conform the street to it, or it will be held to have abandoned it, and property owner may build with reference to previous grade, and may recover damages if previous grade is changed, 3 O. C. C. 503.

21. T/ie measure of damages caused by a change of grade is the diminution in value of the premises occasioned by the change — how much less valuable were the premises immediately after the change, than they were immediately before, 119 Mass. 372; 108 Mass. 60; yoGa. 611; 52 la. 303, 560; 50 Wis. 78. This may be arrived at, { i ) by direct testimony as to the value before and after the change, 83 111., 535; 12 la. 437; but a witness may not give his opinion that the property has been damaged, or as to the amount of damage, 31 Wis., 512; 12 la., 437; 5 O.S. 573; or (2) by showing what it would necessarily cost to adjust the premises to the new grade, by grading off, 113 Mass. iii; 31 Wis., 512; by filling up, 49 Wis. 584; 50 Wis. 78; by constructing retaining, 22 Minn 527, or protecting walls, 122 Mass. no; re-adjusting drains, 10 Rec. 705; or raising improvements, etc., 61 la. 187. But such items can not be recovered specifically — they are simply a means of ascertaining the loss in value, 21 111. App. 93; 10 Rec. 705. If a local incidental benefit be derived by means of restoration, this should be considered as an oft'set against damages ascertained by means of the cost of restoration, 10 Rec. 705. Extra expense in business during the progress of an improvement, such as storage and drayage, and extra labor, do not tend to prove diminution in value, and can not be shown, 12 Bull. 247. If the owner is not allowed damages by the jury, his only remedy is by error, or appeal; he can not enjoin the improvement, 31 O. S. 621; 12 Kas. 17; 82 Ind. 24; 7 la. 416.

22. Rights of actio7i not covered by the statute. If the corporation constructs an elevated viaduct in a street which occupies the greater part thereof, whereby the premises of an owner who abuts the street, but not the viaduct, are damaged, such owner may recover for the injury, 43 O. S. 190. Such person is not an owner of a lot "bounding or abutting upon the proposed improvement," and is not required to file a claim for damages under a statute requiring such an owner to file a claim for them. Ibid. The laying of a street railway so near the sidewalk as to obstruct the convenient access to an improvement made wath reference to the grade of a highway, is an injury for which compensation must be made, 14 O. S. 163. And although the owner has access to the part of the street immediately in front of his premises, he will be entitled to damages if he is obstructed in his passage from that part, to the portion traveled by the public by an elevated trestle, 8 Bull. 15. An owner Avhose lot does not abut upon a street Avhich is being graded may recover damages to his la7id by removal of the lateral support in grading such street, 38 O. S. 141 ; and he may recover for damages to buildings, or other artificial structures, if the work be done negligently, 38 O. S. 141; 8 Bull. 25; 21 O. S. 499.

■ 23. Where a statute provides for the assessment of damages when the parties can not agree, an attempt to agree is a condition precedent to the exercise of the power of appropriation, 28 Cal. 662; 29 Mich. 77; 32 Mich. 283; 47 Mo. 474, 479; 36 N.J. L. 499; and inability to agree must be alleged and proven, 33 O. S. 429. For what is a sufficient attempt to agree, see 53 Mich 442; 5 W. Va. 382; 82 N. Y. 196; 67 N. Y. 37. If property is owned "hy persons under a disability who cannot agree, no attempt need be made, 20 Ind. 9; 103 Mass. 106. Construction of a railroad in a street before right to construct has been acquired fromadjoiningproperty owners, may be enjoined by such owners, 38 O, S.41 ; and it is immaterial whether the fee ot the street is in the city or in the abutting owners, Id. There can be no recovery from the municipality for permitting the vise of the street for railway purposes, 41 O. S. 207. In an action by the adjoining owner for damages, he is entitled to recover full compensation for the depreciation in the value of his property, 45 O. S. 309; 40 O. S. 496; 35 O. S. 284; 33 O. S. 429. And when such compensation is made, he will be estopped to deny that

5] SUFFRAGE AND ELECTIONS. [§§ 83 — S6

the occupation is without his consent, 12 Bull. 214; 21 Fed. Rep. 309. The measure of damages in such action is the difference in value of the property affected, before and after the location of the road, 45 O. S. 309; and upon this question testimony as to injury from smoke, noise, and sparks is competent. Id. ; but testimony as to diminution of rents, and opinions as to amount of damages, and as to " the difference in yalue of the property with the track in the street and if it was some other place" is incompetent, 33 O. S. 439; 45 O. S. 309.

ARTICLE 2— SUFFRAGE AND ELECTIONS.

STEC.

SEC.

53. Elections free.

54. Qualincations of electors,

55. Soldiers — Seamen — Marines.

56. Residence.

57. Briberv a disqualification for office

58. Challenge to duel.

89. Disfranchisement,

90. Effect of holdino- lucrative offices.

91. Defaulters not eligible.

92. Pro tempore appointments. 03. Electors free from arrest. 94. Method of election.

Took effect November i, 1851.]

Sec. 83. Elections free.