179 Ind. 146 | Ind. | 1912
Action by appellees as taxpayers of the city of Hammond against appellants, as contractors, and the school city to enjoin them from constructing a high school building in that city, under contracts with the school corporation.
The errors assigned, and not waived, call in question the sufficiency of the complaint, errors in the conclusions of law, and error in overruling the motion for a new trial. Upon proper request the court found the facts specially and stated its conclusions of law, and as the finding of facts follows the complaint closely, it will be sufficient in determining the first two assignments of error to summarize the findings.
The findings disclose that appellees were taxpayers of
The position of appellants is: (1) that it was not necessary to procure the consent of the common council before entering into the contract, and there is no negation of the discretionary power vested in the school trustees; (2) that the indebtedness of the civil city is not to be combined with that of the school city in determining the limitation of indebtedness which the latter may incur; (3) that it was not necessary that notice be given by publication or posting of the character and size of the building or of the debt proposed to be incurred; (4) that the contracts are not invalid because it is shown that industrial and manual training is proposed to be introduced in the public schools; (5) that the complaint states conclusions with respect to the available funds to meet the obligations as they become due, and does not negative the proposition that the civil city may aid in furnishing the fund; and, (6) that the proposed exchange of property for work and material is not invalid.
As all the questions presented by the complaint are presented by the findings and conclusions, except as to the point made that the allegations of the complaint on the
The complaint, though involving several grounds, had but one theory, and that was to declare the contracts invalid. Upon the findings of fact it is contended by appellants, that consent of the common council was not necessary before entering into the contracts upon the grounds, (1) that §6563 Burns 1908, Acts 1879 p. 86, §4491 R. S. 1881, is in conflict with §19, article 4 of the State Constitution, being the section requiring the subject of an act to be embraced in the title; (2) that being supplemental to the act of 1873 (Acts 1873 p. 60, §4488 R. S. 1881, §6560 Burns 1908), the supple
The act of 1879, (Acts 1879 p. 86, §4491 R. S. 1881, §6563 Burns 1908), purports to be purely supplemental to existing laws by title, and by the act, not to affect any contract made prior to its taking effect. It is this supplemental act m toto which forms §6563 Burns 1908, supra, by which it is provided that “before the school trustees * * * shall purchase any ground for school purposes, or enter into any contract for the building of any school building or buildings, they shall file a statement with the trustees of such incorporated town, or common council of such city, showing the necessity for such purchase of ground, or the erection of such building or buildings, together with an estimate of the cost of such ground or building or buildings, and the amount
It will be observed that the original act of 1873 refers only to bonds issued by the civil city, the proceeds of which were to be turned over to the school corporation, and the supplemental act of 1879 refers to the conditions under which the school corporations may contract for ground, and construction of buildings. The act of 1903, for the first time, conferred the express power of issuing notes or bonds by .school corporations, to procure means to buy grounds, or build or repair school buildings, and enacts the conditions upon which “any such debt”, may be incurred, and the contention of appellants is, that these conditions precedent apply only to the issuance of notes or bonds, and not to entering into contracts.
It will be noted that under this act, formal consent by the common council, or the board of trustees, is not required, but a notice of certain facts is required to be given as conditions precedent to issuing notes or bonds, either with, or without an election, as the ease might be. The amendment of §4 in the act of 1907, did not affect the question before us. The amendments of §§1, 4, in the act of 1909 present the question whether the conditions precedent, of section
Under the act of 1903, school corporations are given unrestricted power, within the two per centum limit and the limitation to submit to the voters in certain contingencies,to purchase grounds and construct buildings, in their discretion upon compliance with the statute as to notice. This provision was germane to the subject in case an election was required, but where an election was not required, it could only have an advisory purpose, in advising the citizens, and as this was the only restriction upon their discretionary powers, it must in the light of former legislation have a purpose, as a condition precedent to the exercise of their powers. The same thing is true as to the act of 1909, except that the provision as to notice could no longer apply to an election, which is eliminated by that act. Clearly no indebtedness can be created in excess of two per centum, whether in form of notes, bonds or any other form, but if we were to hold that “any such debt” refers only to indebtedness created by bonds or notes, the spirit of the act as to publicity would be violated, for there is no reason aside from giving publicity, for the requirements in case of issuing notes or bonds, and the same reason obtains as to any other form of indebtedness; the effect upon the citizens is the same in either case, and as the legislature evinces an increasing of power in the school corporations, publicity is all that is left to the taxpayer, except such as he may have upon' general principles of law. It may be conceded that the language is inapt to express the requirement for giving notice of a proposed contract, but the reason and the necessity is the same, as well as the spirit and intent of the act. The subject is the creation of indebtedness; if the indebtedness may be created by the formality of eon-
Appellants concede and insist, that the clause in regard to giving notice of the location of real estate and size and character of buildings, etc., applies only to the issuance of the notes or bonds, and under that view, or under the broader view that it refers to all obligations thus arising, there is no conflict whatever between the supplemental act of 1879, and the act of 1909; they refer to entirely distinct subjects in either case, and are susceptible of being enforced without the slightest disharmony. Argumentatively speaking, if it was necessary in 1879, when school corporations had not the declared power of creating obligations by note or bond, but only power over the expenditure, to require assent of the body which created the officers of the school city, it is manifest that when the power of creating obligations is conferred, there is more reason for requiring the assent, than under the act of 1879, besides the subsequent acts specifically deal with the subject of repeal, and only repeal inconsistent acts. Nor can we concur in the contention of appellants, that the supplemental act is not germane to the subject of the original act, and not embraced in the title. The subject of the act of 1873, is the raising of funds to purchase grounds, build schoolhouses, etc., and an act which provides for procuring the assent of the civil city t'o the expenditure of the money which it provided, is certainly very nearly connected with the general subject of the act, and the title as well, and that is sufficient. Thorn v. Silver (1910), 174 Ind. 504, 89 N. E. 943, 92 N. E. 161; Western Union Tel. Co. v. Braxtan (1905), 165 Ind. 165, 74 N. E. 985; Baltimore, etc., R. Co. v. Town of Whiting (1903), 161 Ind. 228, 68 N. E. 266; Clarke v. Darr (1901), 156 Ind. 692, 60 N. E. 688; Republic Iron, etc., Co. v. State (1903), 160 Ind. 379, 66 N. E. 1005, 62 L. R. A. 136; Maule Coal Co. v. Partenheimer (1900), 155 Ind. 100, 55 N. E. 751, 57 N. E.
If, when estimates are made, the school corporation has funds on hand to pay, and does pay, no debt arises, otherwise it does; so the question is made to revolve around the proposition whether a debt is created by the contract, and whether the agreement to take the real estate as a payment pro tanto, is permissible as of a cash payment, so as to remove the ban of what would otherwise create a debt in excess of the constitutional and statutory prohibition, and whether the contracts are wholly void.
We have been cited to no statute, and have been able to discover none, applying specifically to sales by trustees of school towns and school cities, prior to the act of 1911.
15. If the agreements with Caldwell and Drake are invalid, as we hold they are, because, without exchanging the property, it is conceded that a debt would be created in excess of that permissible, it necessarily follows that the other contracts are so necessarily connected with, and impossible of performance without the construction of the building proper, that the whole must fail.
It is insisted by appellee that there is no authority of law for the establishment of manual and industrial training
Appellants’ theory is that the conditions had been so changed by the supplemental agreement, that means to construct the buildings might have been provided for paying for them. Under our view, as to the consent of the common council being required, and notice of the proposed expenditure, a sale being required for cash, the evidence was immaterial.
After the evidence was concluded, and the cause was submitted, appellees were permitted over objection and exception, to file an amended second paragraph of complaint, and dismiss the first paragraph. We are not advised as to the character of the amendment. The original complaint is not in the record, and we cannot know its allegations, and the question is not presented.
The sole question which came to this court in the case of Monical v. Edse (1912), 49 Ind. App. 302, 94 N. E. 232, in the opinion, on which the case was sought to be transferred, was whether the act of 1909 (Acts 1909 p. 100),
The judgment is affirmed.
Note.—Reported in 99 N. E. 117. See, also, under (1) 31 Cyc. 49; (2) 3 Cyc. 383; (3) 30 Cyc. 1028; (5) 36 Cyc. 1147; (7) 35 Cyc. 975; (9) 28 Cyc. 265; (10) 35 Cyc. 945; (13, 14) 35 Cyc. 945; (15) 9 Cyc. 562. As to the sufficiency of the title to a statute within constitutional requirements, see 64 Am. St. 70; 79 Am. St. 456; 86 Am. St. 267. For a discussion of two or more political bodies wholly or partly coincident in territory as separate bodies for the purposes of a debt limit under the Constitution, see Ann. Cas. 1912 C 449.