The opinion is sharply assailed in brief on rehearing as giving sanction to a simulated *Page 641 and fraudulent concoction of a judgment by the judicial body.
On the contrary, the opinion undertakes to point out, on the authority of our former decisions, why the cross-bill does not present a case for equitable relief on such grounds.
The cross-bill is not to be judged by mere general allegations of fraud, but from the averments of fact therein in connection with the original bill and exhibits; so far as admitted or not denied in the cross-bill.
As pointed out, the city had duly enacted improvement ordinances for the improvement of this section of Main street, along with a number of other streets, the cost to be assessed against abutting property, not exceeding the special benefits accruing to such property by reason of such improvements.
A contract had been duly let for the improvements as a whole. At this stage the state, under its statutory powers, contracted with the municipality to construct this section of the improvements as a state highway project, to be paid for from state highway funds. This contract was carried out, the state's funds paying for the improvement.
There is no averment the improvement was not made as per the original ordinances, nor is it denied that cross-complainant's property was enhanced in value thereby to the extent of the assessment, nor that such assessment exceeded the cost of the improvement. In essence and effect complainant's contention is that the public funds, state highway funds, paid to the city, went, as matter of law, to relieve this property from the assessment originally contemplated; that through such process public funds were devoted to the enhancement of the value of this property, while other abutting properties were assessed with such benefits. The cross-bill does not set forth the terms of the contract between the town and Highway Department in this regard, nor whether there was any stipulation on the subject.
In any event, when the town council came to consider what property should be assessed, it became a question of law whether this property remained subject to assessment to avoid discrimination, and give the benefit of state aid to the public, rather than to confer special benefits on this property free to the owner.
If complainant had such rights, the record discloses no excuse why they were not asserted at law. It affirmatively appears the council gave the notice required by law that this property was being assessed, and an opportunity given for hearing.
For aught averred, the complainant had actual knowledge of all the facts, and by silence consented thereto, as the statute declares, or, if objection was interposed, same was overruled, and an adequate remedy at law provided. It does appear affirmatively that he had actual knowledge of the assessment having been made, a demand for payment, and payment made thereon. It does not appear this suit was brought within one year thereafter, the period of limitation when the suit is brought after three years.
We adhere to the conclusion that the crossbill does not make a case for equitable relief upon the ground of fraud; and, if any such equity were shown, it is barred.
Application overruled.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur in the foregoing opinion.
THOMAS, BROWN, and KNIGHT, JJ., concur as per special opinion of BROWN, J.