03/18/1924 Board of Public Works Minutes

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iso TuesdAy March 18, 1924. Continued. Communication received and read from Mrs. Carlotta Murray Banta regard- ing damage done to her maple tree in frnnt of her property when Lafayette Street, seer and Jefferson Boulevard newer were put in. Same placed on fileC, Communication received and read from City Attorney L. W: Hammond.as follows: South Bend, Ind., March 14, 1924. Board of Public Works, City Hall, South Rend, Ind. Gentlemen: I have been asked to advise you whether the city has the power under :Section 87109 Burns Revised Statutes toiiwprove two or more streets under the same resolution. I have made a careful search for some authority based upon this Section of the Statutes and have been unable to find any case where the question h4s been decided by our courts, It was held in the case of Lewis vs. Albertson, 23 Indiana Appellate, page 147, that a resolution for street improvements may embrace more than one street. It has also been decided in some other States but all of these decis- ions were based upon different statutes than the'one under which the city is now operating. Elliott on Roads and Streets in Section 694, is as follows: "Where the statute forbids, either expressly or by.implication, the local office:Fs from including more than one improvement in a single order of assessment, they have no authority to provide for more than one improvement. It wOx4ld seem to be in har- mony with the general rule that prevails in cases where the authority exercised is _purely statutory that two distinct and radically different improvements cannot be included in one general order of assessment, unless by express words or clear implication it is authorized by statute. Improvements are not, however, necessarily distinct and different because different roads or different streets are included, . ferit may well be that the system is a single and uniform one, although it embraces more than nne street. If, in fact, the improvement is a unity, an assessment may be valid, although it embraces in its line more than one street or road. It may often happen that in order to secure a complete end effective system it is nec- essary to construct a rrn in line with branches, or to improve two or more streets at once so as to secure a uniformity of grade, and in these, or similar instances, there is no reason why the system may not be considered as a single improvement, except, of course, where the statute supplies a reason for a different rule. A valid statutory reason is always conclusive if it is not always satisfactory." It is important therefore to examine our own statute to see whether there exists any good reason why these two streets cannot be improved under a single resolution and it seems to me that there is a very good reason in that it would be possible to deprive abutting property owners of rights given them by the statute if the Board had the power to connect one street where theproperty owners were opposed to an improvement with another street where the property owners were favorable to the improvement. For example, the statute provides that if prior to ten o'clock on the morning of --the tenth day fram the date of the first publication a majority of the resident free holdetrs on a street shall petition for a- different kind of pavement than that designated by the Board, the Board shall adopt said pavement. NOV, if we assume a case where a xong street is to be improved and included with that of another short street and if the majority of the resident property owners along the street greatest in length should decide upon asphalt pavement, they might be able to force this kind of pavement upon the people resid, ing along the short street although they were unanimous in their desire for a different class of pavement. Then too, there is the provision of the statute against letting any con- tract for the improvement of a street where the total cost shall exceed forty per cent of the aggregate value of the property abutting thereon, etc., and a provision that the Board cannon proceed with an improvement if a majority in number of the resident free holdd.rs on the 'street have remonstrated, except by an ordinance of the Common Council. THERE IS AL^0 the provision for the filing of objections in the Circuit Court by forty per cent in number of the owners of property abutting on the street and liable to assessment, and I am unable to see how the property owner can be protected in all of these rights unless the improvement is limited to one street. While the question seems never to have been decided by the Supreme or Appellate Courts of Indiana, under the present statute the City has no power to in- clude the improvement of two.or more streets in the same resolution. Yours truly, L. W. Hamm City Attorney. Atte t s : ]a l9� Pre sidet ---Clerk of the Board