153 Ind. 567 | Ind. | 1899
This action was brought by appellant, a resident and taxpayer of the city of Lebanon, to enjoin said city from letting a contract for the improvement of a street in said city. Afterwards supplemental complaints were filed making additional parties defendant. Each of the appellees filed a demurrer for want of facts to the complaint and the same were sustained, and appellant refusing to plead further judgment was rendered against him on demurrer.
The assignment of errors calls in question the action of the court in sustaining each of said demurrers.
Omitting the formal parts of the complaint, it is averred that the tracks of the appellee, “the Chicago and Southeastern Railway Co., occupy the center of east Railroad street, along the full length thereof, and the same is used by the railroad company as a part of its line of railroad; that before said railroad was constructed on said street, said street had been improved by grading and graveling, according to the general plan of street improvement in said city; that said .railroad was located on said street, and said railroad grade established,, and said street cut down and excavated by the Anderson,
On the 17th day of July, 1897, the appellant filed a supplemental complaint. It is shown in this complaint that since the filing of the original complaint the common council of the city of Lebanon, in pursuance to special ordinance and notice, as in said complaint alleged, let the contract for the improvement of said street to C. G. Wills & Co., composed of Charles G. Wills, William A. Gray, and Thomas W. Huckstep, alleging that said Iluckstep and one David M. Burnes are partners, and work and have an office together in the business of civil engineering; that Iluckstep is a son-in-law of Burnes; that as such civil engineers they are in the employ of said city as the deputies of one Enoch James; that Iluckstep and Burnes made the plans and specifications for the improvement of said street; that Burnes is to superintend the work, make the estimates and accept the same upon the part of the city. After stating the cost of the improvement, it is alleged that the bid and contract price for making said improvement is far in excess of the cost and expense of making the same; that said C. G. Wills & Co., have not commenced to construct said improvement but are about to enter upon said work, and that they are necessary parties; then follows the prayer for relief.
On September 14, 1897, the appellant, Samuel L. Cason, filed his additional supplemental complaint, setting up additional facts relating to the matters in controversy, to some extent restating matters contained in the complaint ánd first supplemental complaint, and charging that the work was not being done according to the contract, and that the materials
The first reason urged for the sufficiency of the complaint is as follows: “That there necessarily must be some limitation to the authority of the common council of a city in making public improvements.”
It is settled law in this State that the municipal corporations have exclusive, original jurisdiction over the, streets and alleys within their limits, and the whole matter of the improvement of the same and the assessments to be made in aid thereof. Barber Asphalt, etc., Co. v. Edgerton, 125 Ind. 455; Keith v. Wilson, 145 Ind. 149; §§3161, 3367 R. S. 1881 and Horner 1897, §§3623, 4404 Burns 1894. Streets may be improved under §§4288, 4289 Burns 1894, without a petition, and over the remonstrance of the abutting landowners, by a two-thirds vote of the council or board of trustees. McEnency v. Sullivan, 125 Ind. 407; Keith v. Wilson, 145 Ind. 149; Depuy v. City of Wabash, 133 Ind. 336; Pittsburgh, etc., R. Co. v. Town of Crown Point, 150 Ind. 536. The power of determining the kind of improvements, and when they are necessary, is vested in the municipal authorities, and the courts cannot control this discretionary power by injunction. City of Kokomo v. Mahan, 100 Ind. 242, 244; Leeds v. City of Richmond, 102 Ind. 372, 376, 377; Macy v. City of Indianapolis, 17 Ind. 267; Town of Sullivan v. Phillips, 110 Ind. 320, 321; Weaver v. Templin, 113 Ind. 298, 299; Bass v. City of Ft. Wayne, 121 Ind. 389, 392; Elliott on Roads and Streets, p. 338.
The second reason urged by appellant for the sufficiency of his'complaint is “that the railroad company is legally bound to improve the street mentioned without any expense to the city or abutting property owners.” Under the contract be
It is next urged that the contract and proceedings for the improvement of said street were illegal and void on account of the contract entered into with the railway on June 14, 1897, and for that reason the complaint was sufficient. Said contract of June 14, 1897, so far as it provided that the common council of the city should bind the contractors for the improvement of said -street and sidewalks to ship all the material for said improvement over said railway, was invalid. And so the city must- have regarded it, for the ordinance and the contract for the improvement leaves the contractors entirely free to purchase the material for the improvement of said street from whom they please, and to transport the same-over whatever railroad they may select. The agreement of the railway company to improve the part of the street occupied by its tracks materially reduces the cost of the improvement to be paid by the abutting owners and the city. The ordinance and contract to improve the street are entirely independent of, and make no reference to, said contract with
The fourth reason urged by appellant in favor of the sufficiency of the complaint is that the contract between the city and C. G. Wills & Co., is void, for the reason that David M. Burnes, the deputy civil engineer of the city, is the father-in-law of Huckstep, one of the members of said firm. It is not averred that said Burnes, the deputy civil engineer, is interested directly or indirectly in said contract, and therefore the same is not void at common law or under the provisions of §2049 R. S. 1881 and Horner 1897, §2136 Burns 1894.
It may be said of the foregoing reasons urged in favor of the sufficiency of the complaint that a suit to enjoin the improvement of a street at the expense of the abutting owners is a collateral attack upon the proceedings of the municipal officers, and for this reason, only'such questions as go to the jurisdiction and power of such officers can be tried. Questions as to the manner in which the work was done under the contract, and kindred questions, cannot be considered in such suit, for they do not go to the jurisdiction. McEneney v. Town of Sullivan, 125 Ind. 407; Alley v. City of Lebanon, 146 Ind. 125; Elliott on Roads and Streets, pp. 296, 440, 442. The law is that all questions which are properly triable on appeal, or, by some tribunal authorized to try the same, or, created for that purpose, must be so tried, and not by injunction. Only such questions as go to the power and jurisdiction of the common council can be tried by injunction, because if the common council has the power and jurisdiction they cannot be enjoined from making the improvement. Balfe v. Lammers, 109 Ind. 347, 348, 349; City of Indianapolis v. Gilmore, 30 Ind. 414. For all that appears in the complaint, all the statutory requirements were complied with, and the common council had full and complete jurisdiction.
It was held, however, in City of Laporte v. Gamewell, 146 Ind. 466, 471, 35 L. R. A. 686, that whenever a city whose indebtedness exceeds the constitutional limit does not have the money on hand arising from current revenues to meet 'its debts of whatever character as they come into existence, such-indebtedness is void because in violation of the Constitution.
Disregarding the conclusions of the pleader, the facts alleged in the complaint do not show that the city will be unable to pay out of the current revenues of the city its ordinary current expenses as well as its part of the expense of the improvement of said street, as the indebtedness for the same shall come into existence. Moreover said contract for
If the city does not have the money with which to pay its share of the cost of said improvement when the same is completed and accepted, as well as its ordinary current expenses that came into existence at or before the time of said acceptance it has no right or authority to pay the same at any time thereafter and may be enjoined from so doing. City of Laporte v. Gamewell, supra, 470, 471. Whenever any one gives such a municipal corporation credit, or agrees to do or furnish anything to or for it, at once, or in the future for cash, if the cash is not on hand to pay therefor when the same is done or furnished, including all ordinary current expenses, an indebtedness is incurred which such corporation has no right to pay, and which cannot be collected, and the collection of which may be enjoined. In other words such corporations when indebted to the constitutional limit, must carry on and conduct their affairs on a cash basis, and cannot do business on credit so as to incur any liability. This is because it is settled in this State that a debt cannot be made by a political or municipal corporation beyond the constitutional limit for any purpose, not even for the ordinary current expenses no matter how urgent. City of Laporte v. Gamewell, supra, 470, 471, and cases cited.
It is not averred in the complaint that the city, if said indebtedness when it comes into existence is in excess of the constitutional limit, will thereafter pay or attempt to pay the same, nor is there any presumption that it will do so; on the-contrary, the presumption is that the officers of the city will' not commit any unauthorized act, such as paying indebtedness contracted beyond the constitutional limit.
Judgment affirmed.