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(109 Ind. 227)

TABER 0. FERGUSON.

(Supreme Court of Indiana, January 11, 1887.) 1. MUNICIPAL CORPORATIONS-STREET ASSESSMENTS-NOTICE.

Where the ordinance providing for street assessments directs what notice shall be given, it is essential to the validity of the proceedings that the prescribed potice be

given. 2. SAME-PLEADING-WANT OF NOTICE AS A DEFENSE.

Where the transcript affirmatively shows that notice was given inviting proposals for making the improvement, the property owner must plead the insufficiency of the notice by answer, and cannot present the question by a demurrer to the tran

script. 3. SAME-No FORMAL ORDER DECLARING SUFFICIENCY OF NOTICE REQUIRED.

It is not necessary that the transcript should show a formal order of the common

council adjudging the notice sufficient. 4. SAME-ESTOPPEL-PROPERTY OWNER NOT OBJECTING TO STREET IMPROVEMENT.

A property owner cannot stand by and see a contractor expend money in im.

proving a street, and afterwards deny the right of the city to make the contract. 5. SAME-ESTIMATE-FINAL ORDER CONTROLS. The final order directing

the estimate controls, although the common council may have made an intermediate order refusing it. 6. SAME-ASSIGNMENT OF ESTIMATE-RATIFICATION.

Where an estimate is assigned by the contractor, and the assignment is ratified by subsequent proceedings of the common council, the assignee may enforce its col

lection by precept. 7. SAME-DESCRIPTION OF IMPROVEMENT IN ORDINANCE.

It is not necessary that the ordinance should contain a specific description of the character of the improvement. It is sufficient if it gives general directions as to the

character of the improvement directed by it. 8. SAME-DUTY OF Ciyil. ENGINEER TO PREPARE PLANS AND SPECIFICATIONS.

It is the duty of the civil engineer to prepare plans and specifications for street improvements.

Appeal from superior court, Allen county.
T. E. Ellison, for appellant. Sinclair & Hanna, for appellee.

ELLIOTT, C. J. The validity of a street assessment ordered by the city of Fort Wayne is in question here. The resolution on which the proceedings are based is set forth in the opinion of the case of Taber v. Grafmiller, ante, 721, and some of the questions here presented were decided in that case.

The objection is made that the notice for proposals is insufficient, and that for this reason the proceedings must fail. The resolution directed the engineer to advertise in two newspapers, the Daily Sentinel and the Triweekly Staats Zeitung, and the transcript shows that the advertisement was published in the Daily Sentinel, but does not affirmatively show that it was published in the Staats Zeitung. The statute does not prescribe what notice inviting proposals shall be given, but provides that the contract "shall be given to the best bidder after advertising for proposals.” Rev. St. 1881, 8 3162. The contention of counsel that the notice must be such as the common council directs, is supported by the case of Kretsch v. Helm, 45 Ind. 438, and although, if the question were an open one, we might feel inclined to hold, in view of the statutory provisions, that a publication in one of two designated newspapers would be sufficient, still we feel bound by that decision on the precise point decided. We cannot perceive how the failure to give a notice in two newspapers, when a fair construction of the statute would seem to make notice in one sufficient, can be held to vitiate the proceedings. We suppose that if the common council does all that the law requires, the proceedings should not be nugatory because it failed to do something that it had itself superadded.

The decision in Kretsch v. Helm cannot, however, be decisive of the question here; for there the fact that the notice provided for by the ordinance was not given was pleaded as matter of defense, while here the question is presented by demurrer to the transcript, which, by force of the statute, stands, in a limited sense, as a complaint. Rev. St. 1881, § 3165. The provision of the statute is "that the clerk shall make out a true and complete copy of all papers connected in any way with said street improvement, beginning with the order of the council directing the work to be done and contracted for, and including all notices, precepts, orders of council, and other papers filed in said matter, which transcript shall be in the nature of a complaint, and to which the appellant shall answer upon rule.” It seems clear from this provision that the transcript is not a complaint, but is in the nature of a complaint; and, certainly, it cannot in strictness be a complaint, for the clerk is only required to certify such papers as are filed. It must be presumed that only such papers are filed as the law requires, and that the transcript need contain no others.

In the record there is a statement that notice was given, and we are of the opinion that it was incumbent upon the appellant to answer as matter of defense that the notice was insufficient or defective. Any other rule would work great hardship to the contractor, for he cannot himself amend the transcript by supplying defects; and, as there is nothing in the statute requiring the filing of notices or proof, the clerk is not bound to certify them; and hence it cannot be inferred that, because they are not on the transcript, they were not given as the resolution directed. If the transcript contains such papers as, under the law, must come into the hands of the clerk, it should be regarded as prima facie sufficient. The transcript ought not to be considered as a complaint in the just sense of the term, for the real party in interest, the contractor, does not frame it. On the contrary, it is the record of a public officer of papers filed in his office. He is only required to certify to such papers as are filed, and therefore we do not think that the failure to set forth proof of notice in the transcript renders it bad on demurrer. We think that where the transcript affirmatively shows that some notice was given, the property owner is put to his defense, although no proof of notice is set forth in the transcript. We have not been able to find any provision of the statute requiring proof of notice of publication to be filed; and, as there is no such provision, it cannot be held that the transcript must show the filing of the proof. It should not be condemned because a notice not required by law to be embodied in it is not there. We do not, of course, decide that an assessment is good without notice; but what we decide is that the proof of notice need not be embodied in the transcript, and, if the notice was insufficient, it should be set up by way of defense, as it was in Kretsch v. Helm. If any papers which form part of the proceedings of the council, or which were to be filed with them or the clerk, were omitted from the transcript, then, doubtless, it should be held that the transcript is not good as a complaint; but the non-appearance of the papers or proof not required to be filed with the common council or the clerk, and not forming part of the proceedings, should not condemn it.

There are notices which must of necessity be filed with the clerk or incorporated in the records of the common council, as, for instance, notice of the precept, of the sale, and the like; and it is to such notices that reference is made by the clause of the statute we have quoted. It is a just and reasonable presumption that, the common council having declared the notice sufficient, it was at least prima facie good; for they are public officers acting under oath. It does not require a formal order or declaration to establish the council's opinion upon the sufficiency of the notice. This is sufficiently evidenced by acting upon the notice without any formal order. Updegraff v. Palmer, 107 Ind. 181; S. C. 6 N. E. Rep. 353. The fact that the record discloses some notice, and the fact that the judgment of the common council shows that it was deemed sufficient, are enough to put the property owner to his defense by way of answer.

There is another view which strengthens our conclusions that, where it appears that there was some notice, the property owners must answer that it was insufficient, and that view is this: A contractor has a right, in a proper case, although the proceedings are irregular, to avail himself of an estoppel; and if we should hold that the property owner is not required to answer the insufficiency of the notice where there is some notice, it would result in depriving the contractor of this right; for, as the transcript constitutes the only complaint which can be filed, and as the law directs what it shall contain, the contractor cannot inject into it any other matters. That an estoppel may be made available in a proceeding to recover a street assessment, is well established by the authorities. The rule is thus stated in a late work: “Thus, a property owner cannot quietly permit money to be expended on work which benefits his land, under a contract with the city, and then deny the power of the city to make the contract.” 2 Herm. Estop. § 1221. This principle has been fully recognized and strongly asserted by this court. Hellenkamp v. Lafayette, 30 Ind. 192; City of Evansville v. Pfisterer, 34 Ind. 36; City of Lafayette v. Fowler, Id. 140; City of Logansport v. Uhl, 99 Ind. 531, see page 541.

The cases elsewhere sustain this doctrine, as will appear from an examination of the authorities referred to by the author from whom we have quoted. The principle has been given effect in damage cases. Peters v.

Griffee, 8 N. E. Rep. 727; Flora v. Cline, 89 Ind. 208; Muncey v. Joest, 74 Ind. 410, see pages 413, 414; Nevins, etc., Co. v. Alkire, 36 Ind. 189; Ricketts v. Spraker, 77 Ind. 371, see pages 381, 382. If it be true, as it certainly is, that a contractor may avail himself of an estoppel, then it must be true that some opportunity must be given him to plead it, and this opportunity he could not have if it were held that such a transcript as the one before us is fatally bad on dem urrer, since that could shut out any estoppel. The fair and reasonable procedure in sucii cases as this, where the transcript certified by a public officer is made by law to stand in the nature of a complaint, and there is some notice affirmatively shown, is to require the property owner to answer, and permit the contractor to reply.

Under the rule as declared in Martindale v. Palmer, 52 Ind. 411, the question as to the sufficiency of the notice cannot be made available; for it was there said, in speaking of the insufficiency of a notice inviting proposals, that “this cannot be inquired into as a fact, as the statute expressly provides that no question of fact shall be tried which may arise prior to the making of the contract for the said improvement under the order of the common council. 3 Rev. St. 1876, p. 102, § 71; City of Indianapolis v. Imberry, 17 Ind. 175.” The case cited by the court undoubtedly sustains this doctrine, and so do the cases of Palmer v. Stumph, 29 Ind. 329; Board Com’rs v. Silvers, 22 Ind. 491; and McGill v. Bruner, 65 Ind. 426. These cases cannat, however, be easily reconciled with the cases of Kretsch v. Helm, supra; McEwen v. Gilker, 38 Ind. 233; Moberry v. City of Jeffersonville, Id. 203; Brookbank v. City of Jeffersonville, 41 Ind. 406. We do not deem it necessary to undertake to determine which line of decisions is the better one; for we think the question may be decided without entering the field of conflict. In view, however, of the strong and clear language of the statute, and of the conflict in the authorities, we deem it proper not to extend the rule adopted in McEwen v. Gilker to such a case as this; nor do we feel inclined to give it, directly or indirectly, our approval; but we leave the question open for further consideration, since it is now left undecided by the conflict in the cases.

It appears in the transcript that the common council at one time refused to order an estimate; but that, after some litigation, the character of which is not disclosed, an estimate was ordered. We think it clear that the final action

of the common council is the governing one; for we do not believe that intermediate orders can overturn the final order. This is substantially held in the case of McGill v. Bruner, supra.

The record shows that the contract was made with Christian Grafmiller, and that he executed to John Ferguson the following assignment:

“For value received, I hereby assign and transfer the within estimate to John Ferguson. July 28, 1884.

CHRISTIAN GRAFMILLER." The only objection to the assignment that is important enough to merit especial consideration is that it does not appear that the common council consented to the assignment by Grafmiller We think that the acceptance by the common council of Ferguson's affidavit as the assignee of Grafmiller, and the action taken thereon, were a ratification of the assignment, and, as is well known, a subsequent ratification is equivalent to precedent authority. We do not perceive how the property owner .could have been prejudiced by the assignment of the estimate; for that was little else than an evidence of a debt, and a step in the process of collecting it, so that the question is very different from what it would be had there been an assignment of the contract. The difference between an assignment of the contract, made before the work was done, and an assignment of the estimate, issued after the work was performed, is so obvious as not to require illustration. But we do not deem it proper to do more than decide that the subsequent ratification of the assignment of the estimate was equivalent to a precedent authority, so that there is no question as to the right of the appellee to collect the assessment. It was proper to file the assignment with the city clerk, and, when filed, it became part of the papers connected with the proceedings, which it was his duty to embody in the transcript. It is, therefore, properly on the record certified to the circuit court.

We held in Taber v. Grafmiller, supra, that the resolution was sufficient, inasmuch as it gave a general direction as to the character of the improvement, and that holding is sustained by the cases cited, as well as by the case of Martindale v. Palmer, supra. The language of the ordinance in that case was that the street “be properly graded according to stakes set by the civil engineer, with the Nicholson or wooden block pavement;" and the court held that it was sufficient, saying, “That which can be made certain, is certain."

In Burr v. Town of Newcastle, 49 Ind. 322, it was held that an ordinance establishing the grade of the streets of the town was not invalid, if the grades could be ascertained without difficulty. We think this principle applies here; for no one can be in doubt as to the character of the pavement proposed to be laid.

It is objected that the plans and specifications prepared by the engineer were not competent. We think otherwise. They were prepared before the notice inviting proposals was given, and showed in detail the character of the work which the city desired done. The statute expressly makes it the duty of the engineer to prepare plans and specifications; and, certainly, plans and specifications prepared by an officer expressly authorized by law to prepare them must be competent evidence.

It was not necessary to prove the execution of the assignment; for it was certified by the clerk as part of the papers filed in the proceedings. If the appellant desired to dispute the validity of the assignment, a proper plea should have been filed.

The record does not show that it contains all the instructions given by the court, and it cannot be said that it affirmatively appears any error was committed in refusing instructions asked by the appellant. For aught that appears, instructions fully covering those refused were given by the court.

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Kennedy v. Anderson, 98 Ind. 151; Newcomer v. Hutchings, 96 Ind. 119;
Mitchell v. Tomlinson, 91 Ind. 167; Pittsburgh, etc., Co. v. Noel, 77 Ind. 110.

Judgment affirmed.
(109 Ind. 172)

ST. JOSEPH, ETC., Co. 0. CINCINNATI, ETC., Co.

(Supreme Court of Indiana. January 8, 1887.) RAILROADS-CONDEMNATION PROCEEDINGS-COLLATERAL ATTACK-DEFECT IN DESCRIPTION

OF LAND-EJECTMENT.

Where a judgment has been entered approving the assessment of damages for land taken for railroad purposes, the land-owner cannot, by an action of ejectment, collaterally attack the validity of the proceedings on the ground that the description in the instrument of appropriation was defective. Appeal from circuit court, Elkhart county. J. M. Vanfleet, for appellant. C. E. Cowgill, for appellee. ELLIOTT, C. J. The appellant seeks, by its complaint, to recover real estate alleged to be in the possession of the appellee. Issues were joined and a trial had, resulting in a judgment against the appellant. The question comes to us on the ruling denying a new trial. The appellee instituted proceedings to condemn the land in controversy, and in the instrument of appropriation thus described the property: “A strip or parcel of land in the county of Elkhart and state of Indiana, described as follows, to-wit: A strip or parcel of land in the north-east quarter of section five, (5,) township thirty-seven (37) north, of range five (5) east, commencing at the thread of the stream of the St. Joseph river, dividing the land herein described from the land on the south belonging to the Elkhart Hydraulic Company, (or to the United States;) extending thence, in a north-westerly direction, along the line of the road, as now located, of the railway company, to where the said company's proposed road, as located, intersects the highway known as the • Cassopolis Highway,' for a distance of fifteen hundred and fifty (1,550) feet; and said strip being four rods wide,-that is, two (2) rods in width on each side of the middle line, as now located, of said proposed railroad,- for the full length of said strip, except that, for the distance of three hundred and twenty-five feet (325) from the south end thereof, so much of said strip of land as lies on the west side of the middle line of the company's road to be only twenty-five feet in width.”

Notice was given, and at the proper time the appellant appeared, and objected to the proceedings; but on what grounds, or to which part of the proceedings, the evidence does not disclose. The court overruled the objections, and appointed commissioners to appraise the land sought to be appropriated. They reported to the court, and in their report described the land substantially as it is described in the instrument of appropriation. The line of the railroad was fixed by a survey, and a profile correctly showing the line, and they were on file at the time the instrument of appropriation was filed in the clerk's office. While the commissioners were examining the land sought to be appropriated, the appellant was present by its officers, and pointed out to the commissioners to what extent the seizure and use of the land would injure the appellant. On the twentieth day of October, 1881, the commissioners properly filed their report, assessing the damages of the appellant at $350. This sum was paid to the clerk on the day the report was filed, for the use and benefit of the appellant.

The contention of the appellant's counsel is that the appellee acquired no title to the land in dispute, for the reason that the description in the instru-. ment of appropriation is insufficient. It is not necessary for us to decide whether the description would have been sufficient, under the provision of the statute requiring “a precise description of the land desired to be taken,” if the objection had been made in the condemnation proceedings; for here the question was not presented in the condemnation proceedings, but in a purely

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