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ducted. The disposition of the fees is not the same under the two statutes, and the methods of procedure are very different. As all authority for action is derived from the federal law, this authority permits only such action as that law prescribes. The fees must be regulated by that law; and, unless the disposition of them is a matter not fairly belonging to the general subject referred to in the Constitution, the disposition of the fees must also be as therein provided. We are of the opinion that the disposition of the fees, as well as the amount of them, may properly be regulated by congressional legislation, as incidental to the establishment of a system with a view to the accomplishment of good results." The Utah and Oregon cases are to the same general effect.

The California case seems to turn on a

county. Seiler v. State ex rel., 160 Ind. 605, | der which naturalization was previously con615, 65 N. E. 922, 66 N. E. 946, 67 N. E. 448. Again in State ex rel. v. Flynn, 161 Ind. 554, at page 577, 69 N. E. 159, at page 167, it was held that the services of the clerk of the circuit court in preparing bar dockets and his per diem allowance for attending court are not fees within the meaning of the act of 1895, but may be retained by the clerk as his own. The court said: "It is only the amount of fees which the clerk is to tax and charge as 'clerk's costs' upon proper books as the property of the county, and not all allowances from whatever source derived." From the rule announced in the foregoing cases it would seem to be the settled law of this state that a public officer whose compensation is fixed by the fee and salary law is not required to account to the county for all the emoluments of his office, but only for such fees as are provided for in the statutory fee bills. We think, however, the aver-provision of the charter of the city and counments of the complaint in the case at bar disclose a state of facts presenting a question the determination of which must be conclusive of this appeal. That question pertains to the legal status of appellee Quill in the performance of the service required of him in naturalization cases by the federal statute. As we have seen, the power to establish uniform rules of naturalization throughout the United States is lodged exclusively in the Congress. In the exercise of that power, laws have been enacted covering in great detail every phase of the subject, and the administration of such laws has been committed not only to the federal courts, but to the state courts as well. It is obvious that, when a state court assumes jurisdiction conferred by a federal statute, such jurisdiction must be exercised in conformity with the statute conferring the same. The court derives no authority from any other source. It becomes a federal court for the purpose of naturalizing aliens, or at least an agency of the federal government, and the officers of the court are necessarily the officers of the federal government in that behalf.

To this date five cases have been reported involving facts identical with the facts in the case at bar. These cases are Eldredge v. Salt Lake County, supra, decided January, 1910, County of Hampden v. Morris, supra, decided October, 1910, Fields v. Multnomah County, supra, decided by the Supreme Court of Oregon January, 1913, City and County of San Francisco v. Mulcrevy, 15 Cal. App. 11, 113 Pac. 339, decided by the California Dis·trict Courts of Appeals December, 1910, and the case of Barron County v. Beckwith, 142 Wis. 519, 124 N. W. 1030, 30 L. R. A. (N. S.) 810, 135 Am. St. Rep. 1079, decided by the Supreme Court of Wisconsin, April, 1910.

ty of San Francisco which required that the county clerk "shall pay all moneys coming into his hands as such officer, no matter from what source derived or received, into the treasury of the city and county of San Francisco within twenty-four hours after receipt of the same." In the opinion the Utah case was distinguished; the court saying: "It does not appear from the opinion to have been a condition of the bond, or the duty of the clerk, to perform all official duties that may have been imposed upon him by law, nor did the statute require the clerk to pay all moneys, 'no matter from what source derived,' into the treasury of the county." In the Wisconsin case, the county board by resolution provided that "all such fees per diem, and compensation for services rendered should be turned over to the county treasurer according to law." The court, however, took a broad view of the case, and in the discussion fairly sustained the position of appellant in this case, although admitting that the question presented was one not easy of solution.

Upon the clear weight of authority, we think the complaint before us does not state a cause of action, and that the trial court did not err in sustaining the demurrer thereto. The judgment is affirmed.

(53 Ind. App. 535) (No.

ANHEIER et al. v. FOWLER et al.
(Appellate Court of Indiana, Division No. 1.
June 6, 1913.)


Cities and Towns Act (Burns' Ann. St. 1908, § 8959) § 265, prohibiting a suit by a In County of Hampden v. Morris, supra, property owner to enjoin the construction of the court said: "The fees prescribed by the any improvement, unless brought within 10 days from the letting of the contract, would federal statute are not all the same as those apply to a suit to have a contract for conprescribed by the law of Massachusetts un-structing a sewer declared void and all records

affecting title to plaintiff's land canceled and the cloud upon title resulting therefrom removed, so that such suit could not be maintained unless brought within 10 days from the letting of the contract.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 842-846; Dec. Dig. § 323.*]


A suit to enjoin construction of any improvement by a town and the right of appeal from a town board's action, both of which are given by Burns' Ann. St. 1908, § 8959, are the only remedies available to a property owner in case of illegality in the proceedings; original jurisdiction of such improvements being vested in the town board.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 842-846; Dec. Dig. § 323.*]

Appeal from Circuit Court, White County; James P. Wason, Judge.

Action by James R. Fowler and others against Anthony A. Anheier and others. From a judgment for plaintiffs, defendants appeal. Reversed, with directions to sustain demurrer to complaint.

Palmer & Carr and William E. Uhl, all of Monticello, for appellants. Alfred W. Reyolds, Emory B. Sellers, and Sills & Sills, all of Monticello, for appellees.

SHEA, J. This action was brought by appellees against appellants Anthony A. Anheier, the town of Monticello, Ind., the board of trustees of said town, and Archie K. Rawlins, interested as a contractor, to have a contract between Anheier and the town, by its board of trustees, set aside and declared illegal and void, and to cancel and annul the

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Monticello, Ind.; that on April 2, 1907, the board of trustees of said town ordered the construction of a main sewer adapted for the use of the owners of property abutting thereon and also for receiving sewage from collateral drains already constructed or to be constructed. As a part of the same proceeding, the board ordered the construction of 13 laterals for local use only, to be constructed with funds from assessments on abutting property, and a resolution was adopted ordering the construction of this improvement; that the town engineer made an estimate of the total cost of same of $15,000, which he filed with the board of trustees on or before April 2, 1907, the day set for the hearing; that no objections were made, and the board found that the improvement was necessary; that the district to be drained by the sewer was properly bounded; and that the special

! benefits to the lands within the district would be equal to the estimated cost, fixing May 7, 1907, as the day upon which bids would be received for the construction of the improvement, and ordering the town clerk to give notice by publication. The only notice given was that the board would receive bids on that day for the construction of the sewer, and award the contract, and no notice was given any person, whose property was liable to be assessed, to be present for any purpose. That the board met on May 7, 1907, but no bids were received, and thereupon at the same meeting said board secretly, and without the knowledge of the bystanders, ordered the engineer to re-estimate the cost of the work, which he did, by writing on the margin of the map of assessable territory: "Total cost re-estimated this May 7, 1907, at $22,000. R. A. Lawrie, Engineer." That he afterThe complaint was in three paragraphs, wards filed with the clerk of the town a redemurrers to each of which by appellants port that, in pursuance with the order of the separately were overruled. Appellant An- board, he had made a re-estimate of the cost heier filed a separate answer in two para- of constructing the sewer of $22,000. That graphs, the first a general denial. Appellees' the board without right or authority of law demurrer to the second paragraph was sus- entered an order of approval of the re-estitained. Each of the other appellants filed mate, which was filed with the town clerk, separate answers in general denial only, and thereupon ordered that he give new nowhich were afterwards withdrawn. Appel- tice by publication, fixing May 21, 1907, as lant Anheier then filed an amended second the day for receiving bids and letting the paragraph, and additional paragraphs of contract. That appellees had no notice nor answer numbered 3 to 9, inclusive, to each of which appellees' demurrer was sustained. Appellants declining to plead further, judgment was rendered in favor of appellees, annulling the contract.


The errors assigned are that the White circuit court had no jurisdiction of the action or the subject-matter thereof; that the court erred in overruling appellants' demurrers to each paragraph of the complaint, and in sustaining appellees' demurrer to each para graph of appellants' answer.

The first paragraph of complaint, in substance, alleges that appellees severally are the owners of real estate in the town of

knowledge that the original estimate had been raised from $15,000 to $22,000, until after May 21, 1907. That the clerk gave notice as ordered by the board, which met on that day and awarded the contract to appellant Anthony A. Anheier for the sum of $21,950, and on June 4, 1907, the contract was put in writing and signed by the board and Anheier. That 760 feet of the main sewer next its outlet, which will cost about thousand dollars, is entirely without the corporate limits of the town, passing across unplatted farm and pasture land, and prior to the execution of the contract the board had agreed with the owners of this unplatted

land, aggregating about 30 acres, that same ] assessments to be made for the construction should be exempt from assessment on ac- of the improvement to abutting property count of the construction of the sewer, and holders, which would be the effect could thereby the cost of the 760 feet will be added the board legally pass the proposed resoluto the assessment of property owned by ap- tion; that, if the board is permitted to pass pellees and others within the assessable area the resolution or make the nunc pro tunc shown by the map. That neither appellees entry, it would create a cloud upon the title nor other owners of property within said of appellees and others owning property abutterritory have ever been given notice or ting on the improvement. Prayer that the opportunity to prove whether or not the total contract entered into by the board and Anbenefit to property within the assessable ter- heier be set aside and declared void, and all ritory shown by the map filed in the proceed- illegal records and corrections of records ings was more or less than the estimated made, or threatened to be made, which will cost of $22,000. That the re-estimated cost of affect the title of appellees' land, be canceled construction was without authority of and and held void, the cloud thus placed upon apcontrary to law, and the contract between the pellees' several titles removed, and each board and appellant Anheier was $6,950 quieted and set at rest, and for all proper above the legal estimate made by the en- relief. gineer and filed with the clerk. That the part of the assessable area as shown by the map lying west of the Chicago, Indianapolis & Louisville Railway is wholly disconnected and does not abut upon the main sewer or any of the laterals to be constructed under the contract, but must discharge its sewage through the main sewer. That the territory proposed to be assessed lying east of the railway is almost entirely platted and owned by several hundred people, some of whom refuse to join in this action, but all of whom are interested the same as appellees, and this action is brought in their behalf as well. That appellant Rawlins claims an interest in the contract, and is made a party to this action to answer as to same. That the board of trustees have never passed a resolution or made any finding or order of record that any part of the general funds of the town be appropriated for the payment of any part of the construction of the sewers, so that the entire contract price, if collected, must be borne by the real estate situated in the district shown by the map. That notwithstanding the board found and entered of record on April 2, 1907, that the special benefits accruing to the lands within the district were equal to the estimated cost of the improvement, $15,000, they now assert that on May 7, 1907, they found and determined that such benefits are equal to the re-estimated cost, but omitted to record this finding, and on September 3, 1907, will enter same nunc pro tunc as of date May 7, 1907. Appellees allege that the question of special benefits to abutting property was not considered by the board on that date, nor was any such finding and determination made then or at any time; that the board at a meeting to be held September 3, 1907, will pass and record a resolution that the special benefits to abutting property holders are equal to the re-estimated cost, which shall be final and conclusive upon all parties, and that the board has no right, power, nor authority at this time, and will not have on September 3, 1907, to pass and record such resolution, nor to change the dis

The second paragraph contains all the allegations of the first, and substantially the following additional charges: That, in the original resolution for the construction of the improvement, the area to be drained and benefited was described as within certain boundaries. This territory included lands which did not abut either upon the main sewer or any of the branches, and can only be connected with the outlet sewer by future drainage. That the board caused a map of the territory within the boundary lines to be made and filed with the clerk, with an estimate of the cost of the sewer on or before March 5, 1907, and on January 1, 1907, contemporaneously with the adoption of the resolution directed Robert A. Lawrie, the town engineer, to prepare plans and specifications for the sewer and branches as described in the resolution. On January 15, 1907, the engineer filed with the clerk his report, including plans and specifications for the improvement, a map of the territory benefited (which is the same used throughout the proceedings), and an estimate of the total cost of the work. At the same meeting at which his report was filed, the board directed that notice be given by the clerk that on March 5, 1907, objections to the construction of the sewers would be heard. Notice was given, but on that date the board heard no objections, and adjourned until March 12, 1907, at which time no meeting was held, nor did they meet again until March 18, 1907, when they adopted a resolution, the same one which was adopted on January 1, 1907, and fixed April 2, 1907, as the day they would meet and hear persons whose property might be affected, ordering the clerk to give notice, which was done. That on April 2, 1907, the plans, specifications, map of assessable territory, and estimate of the cost of the improvement as reported and filed on January 15, 1907, were adopted. That said plans, specifications, and estimate of cost were the same and only ones considered by the board and examined by the property owners on April 2, 1907. That the board found the district to

materials furnished under the contract, and intends to assess the expense of establishing the improvement and cost of superintending the work and the contract price against the real estate included in the area described in the original resolution, including appellees' lots and lands, and thus create a cloud upon their titles. A copy of the contract is made a part of this paragraph of the complaint by exhibit.

The third paragraph of complaint repeats the allegations of the second with this difference as to certain described land outside the town boundary belonging to William H. Robinson and Samuel E. Roth, mentioned in the second paragraph, through which the main sewer passes a distance of about 760 feet to its outlet: Instead of the charge that the board of trustees obtained the right to put the sewer through these lands by an agreement with the owners that their lands should be exempt from assessment on account of the improvement, it is, in substance, alleged that the order for the construction of the sewer was made and the contract for the work let and executed by the board of trustees without having acquired the right to construct the sewer or to maintain the same, by condemnation proceedings or in any other manner, through any of said grounds; that, besides the lots of William E. and Ida C. Biederwolf and Charles A. Holliday mentioned in the second paragraph of complaint, this paragraph charges substantially that the sewer passes through other private grounds where there is no street or alley, namely, certain described land belonging to William Keever and an outlot belonging to John Teeter, and that said board made the order for the construction of the sewer and executed the contract without having acquired any right, by condemnation proceedings or otherwise, to construct the sewer through any of said private grounds, and this right had not been acquired in any manner up to the time of bringing this action; that no one had any right or authority to enter upon the grounds to construct said work, could not do so, and consequently the order of construction and the contract were void and of no effect. The relief asked in this paragraph is substantially the same as that asked in the first.

original resolution was properly bounded, | might obtain a profit on the work done and and that the special benefits to the lots and lands within said district would be equal to the estimated cost of the improvement, $15,000, and no more, which decision has never been changed, reversed, appealed from, nor modified by the board. That appellees were content with the estimate of the cost and with the finding and decision of the board. That the board never fixed a time and place for any hearing or review of said decision, nor gave notice in any manner that at any time they would review, reconsider, change, or modify such finding, and the same remained unchanged until the date of the letting of the contract, and the board having advertised for bids to be received on May 8, 1907, and receiving none, readvertised, fixing May 21, 1907, as such date, when they awarded the contract to Anheier for $21,950, which was $6,950 more than the total special benefits accruing to the lands in the territory bounded by the original resolution. That on July 6, 1907, a written contract was entered into with Anheier, by the terms of which the contract price of $21,950 is to be paid out of the assessments against benefited property, and such bonds as may be issued on account thereof. That the board never provided by resolution or otherwise that any part of the cost of construction of the sewer shall be paid out of the general fund of the town, but it is, on the contrary, expressly provided that the costs and expenses shall be assessed against the real estate benefited, and turned over to the contractor, either in original assessments or bonds to cover same. That appellees resided in the town of Monticello, Ind., and knew the contract was made without authority of law, and provided for the payment of sums of money largely in excess of the total special benefits accruing to the real estate liable to be assessed therefor, which would be unlawfully levied and assessed against appellees' lands, and many thousands of dollars in excess of the special benefits which will accrue to the lots and lands abutting on the sewer and its several branches. That the board ordered the construction of a branch of the sewer through lots belonging to Charles A. Holliday, William E. Biederwolf, and Ida Biederwolf at a place where there is no street or alley, and without condemnation proceedings, and that the board and other appellants have no right, power, or authority to enter upon these private grounds to construct the branch, which will result in laying tile without an outlet therefor. That this will be useless and result in an outlay of money with no resultant benefits, for a part of which appellees' real estate, lying within said territory will be unlawfully assessed. That the board of trustees, knowing the facts herein alleged, purposely and fraudulently accepted the bid of the contractor Anheier, and ex

[1] It is the opinion of this court that section 8959, Burns 1908, being section 265 of the cities and towns act 1905, governed this proceeding. It expressly provides that: "No suit to enjoin the construction of any improvement shall be brought by any property owner unless brought within ten days from the letting of such contract." This section and this particular portion of the act has received the sanction of the Supreme Court of this state in the case of Martindale v. Town of Rochester, 171 Ind. 250, 86 N. E.

The complaint discloses that appellees did | proceedings for the improvement are attacknot bring themselves within the provisions ed for irregularity, and where their validity of said act. They now seek to accomplish indirectly what they should have done directly. The act itself governs and controls all the conduct of the town board, and the aggrieved taxpayers should have taken advantage thereof. Any other construction of the act would tend to endless confusion and hopeless litigation.

is denied, but color of law exists for the proceedings. Palmer v. Stumph (1868) 29 Ind. 329; Hellenkamp v. City of La Fayette (1868) 30 Ind. 192; City of Evansville v. Pfisterer (1870) 34 Ind. 36, 7 Am. Rep. 214; City of La Fayette v. Fowler (1870) 34 Ind. 140; Muncey v. Joest (1881) 74 Ind. 409; City of Logansport v. Uhl (1884) 99 Ind. 531, 49 Am. Rep. 109; Peters v. Griffee (1886) 108 Ind. 121 [8 N. E. 727]; Taber v. Ferguson (1887) 109 Ind. 227 [9 N. E. 723]; Ross v. Stackhouse (1888) 114 Ind. 200 [16 N. E. 501]; Prezinger v. Harness (1888) 114 Ind. 491 [16 N. E. 495]; Western Pav., etc., Co. v. Citizens' St. R. Co. (1891) 128 Ind. 525 [26 N. E. 188, 28 N. E. 88] 10 L. R. A. 770, 25 Am. St. Rep. 462; McCoy v. Able (1892) 131 Ind. 417 [30 N. E. 528, 31 N. E. 453]; Vickery v. Board, etc. (1893) 134 Ind. 554 [32 N. E. 880]; Cluggish v. Koons (1896) 15 Ind. App. 599 [43 N. E. 158]. In Vickery v. Board, etc., supra, the proceedings were attacked upon the ground that the law under which they were had was unconstitutional, and this court held that one who receives the benefits under an unconstitutional law cannot deny the constitutionality of such law. In Cluggish v. Koons, supra, it was held that the proceeding under a law which had been repealed may not be attacked, as invalid, by one who has stood by and permitted his property to be benefited by such proceeding. In McCoy v. Able, supra, it was said: "Principle and authority forbid that property owners should be allowed to stand by, inactive and passive, until after the work has been done, and then come in and take from the contractor the value of his work and materials without compensation. For such persons the law has no very tender regard." In Ross v. Stackhouse, supra, it was said that: "In any event, one who acquiesces, with knowledge, until after

The case of Martindale v. Town of Rochester, supra, is an exhaustive case with an exhaustive case with much citation of authority, and goes into a discussion of the important questions of this case. The court in passing upon section 8959, supra, uses the following language: "Besides, it will be observed that all the grounds or reasons set out in this opinion, which appellant claims show that the proceeding and contract for said improvement were void, relate to matters before or at the time of the letting of the contract. It is expressly provided in section 8959, supra, 'that no suit to enjoin the construction of any improvement shall be brought by any property owner unless brought within ten days from the letting of such contract.' The object of said statute is evident and its effect just, for it requires the property owner, who desires to question the validity of the contract, to commence his suit therefor 'within ten days from the letting of the contract'; that is, before any substantial part of the improvement is made. If the property owner does not commence such suit within the ten days mentioned, he cannot, after the improvement is completed, maintain a suit to enjoin the making or collecting of benefits for any ground existing prior to the expiration of said ten days. So construed, this statute gives effect to a well-settled principle of equity, for it precludes a property owner, who permits a contractor to improve a street, from defeating a recovery for the work because of errors or irregularities which occurred before the time the contract was executed. Taber the improvement has been completed, canv. Ferguson, 109 Ind. 227, 231 [9 N. E. 723], not escape payment for the actual benefits and cases cited; McEneney v. Town of Sulli- received, even though the proceedings turn van [125 Ind. 407, 25 N. E. 540], supra; out to be void, provided the contractor proBarber Asphalt Pav. Co. v. Edgerton [125 ceeds in good faith and without notice from Ind. 455, 25 N. E. 436], supra, and cases cit- the property owner. He cannot enjoy the ed; McCoy v. Able, 131 Ind. 417, 422, 426 benefits and escape the burden, unless he in[30 N. E. 528, 31 N. E. 453], and cases cited; terferes or gives notice before the benefit De Pauw Plate Glass Co. v. City of Alexan- is received." In Prezinger v. Harness, sudria, 152 Ind. 443, 451, 452 [52 N. E. 608]; pra, it was said: "The authorities fully jusBoard, etc., v. Plotner, 149 Ind. 116, 119, 121 tify the statement that, where an improve[48 N. E. 635], and cases cited. It was ment is made under color of statutory prosaid in the case last cited: 'It is a general ceedings, unless such proceedings are so torule, now fully accepted in this state, that tally and palpably void as that the person where the owner of property subject to as- who made the improvement or performed sessment for public improvements stands by the work must have proceeded with a degree and makes no objection to such improve- of recklessness that amounted to bad faith, ments which benefit his property, he may not the property owner who stood by and receivdeny the authority by which the improve-ed the benefits assessed against his property ments are made, nor defeat the assessment will be estopped to assert the invalidity of made against his property for the benefits the proceedings without first paying, or

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