176 Ind. 510 | Ind. | 1911
Appellee, a corporation, sued appellant for a sum alleged to be due to it from the city under a contract for the construction of a district sewer. Appellant demurred to the complaint for the alleged insufficiency of facts. This demurrer was overruled, defendant declined to plead further, and judgment was rendered for plaintiff for $20,709.03. Prom that judgment, defendant appeals.
The only error assigned is the overruling of the demurrer to the complaint.
The complaint alleges that the city of Indianapolis is a municipal corporation of the first class; that on July 10, 3907, by and through its board of public works, it adopted a resolution ordering the construction of a certain district sewer; that bids for the construction of the work were received on October 7, 1907, and as appellee's bid was the lowest and the best, it was accepted, and on May 13, 1908, the contract was awarded to appellee for the agreed price of approximately $145,000; that immediately thereafter appellee commenced the work, completed it to the entire satisfaction of the city engineer and of the board, and it was accepted; that after it was completed and accepted, on August 25, 1909, the board adopted a preliminary assessment roll, in which the total contract cost of the improvement was primarily assessed against the property in the drainage district, and no part of the cost was assessed against the city; that at the final hearing the board decided that the properties in the district, primarily assessed as aforesaid, were specially benefited in the several amounts respectively assessed against them in the preliminary assessment, and thereupon adopted and confirmed said roll as the complete and final assessment roll, by which the entire cost was as
The complaint is long, and avers facts showing that the board, in all of the proceedings, from the adoption of the preliminary resolution for the construction of the work, to the completion of the final assessment roll, followed the provisions of §§8722, 8724, 8725 Burns 1908, Acts 1905 p. 219, §§117, 119, and Acts 1907 p. 563. It also avers facts showing that plaintiff performed all the stipulations required of it by the terms of the contract sued on, and performed all things required of it by the terms of the statute.
Prior to the date of the preliminary hearing, the city engineer filed with the board his estimate of the total cost of the work, in the sum of $146,000. After the preliminary, hearing on August 7, 1907, the board decided that the drainage district was properly bounded, and that the spe'eial benefits to the property within the district, and the benefits to the city, would be equal to the estimated cost of the improvement, and ordered the sewer constructed.
The notice to bidders contained the following provision: “That under no circumstances shall the city of Indianapolis be, or be held, responsible for any sum or sums due from said properties or the owners for said work, or for the collection thereof, or for the payment of any bond, bond certificate or certificates issued to said contractor in payment for such work, except for such moneys as shall have actually been received by said city from the assessments for such improvement.”
Within ten days thereafter, certain property owners of the district, pursuant to the provisions of §8725, supra, filed their petition in the Superior Court of Marion County, averring that the several amounts of their respective assessments were excessive, and the court appointed appraisers to reassess their benefits. The appraisers reduced these assess
The total reductions in the assessments, made by the appraisers, represented the difference between the contract price, and the total amount of assessments against the property, as shown by the corrected assessment roll. Appellee subsequently demanded this sum from appellant, and the demand was refused.
Appellant contends that municipal corporations have only such power as the statutes confer, and that these powers must be strictly construed; that under such rule the corporation is only liable for the amounts collected by it from the property owners, because the contractor accepted the contract with full knowledge of the statutory restrictions, and of the provision in the notice to contractors, hereinbefore set out, "that under no circumstances shall the city * * * be * * * responsible for any sum * * * due from said properties,” etc.
Appellant also contends that under the statute the board' had no power to order an improvement of this character that would create a liability against the city in an amount over $5,000, and if there is a liability against the city in the latter amount, appellee’s remedy was a proceeding by mandamus.
The proper construction of the italicized parts of the statute just quoted, in connection with the other provisions of the statute, is the principal ground of contest between the parties to this appeal.
It is contended by appellee that the provision that not more than $5,000 shall be paid out of the city treasury for one improvement, unless pursuant to an ordinance of the city council specially appropriating it, in nowise bars appellee from recovering the contract price of the work, under the facts here alleged; that this proviso was intended by the legislature only as a check on the board of public works in its action preliminary to the letting of the contract for the construction of the work; that if, before letting the contract, the board ascertains that the construction of the work .will involve a liability against the city of more than $5,000, then it is the duty of the board to halt, until the city council makes an appropriation; but in the absence
We think the lower court did not err in its decision. It does not appear that the board exceeded its statutory powers in any respect in deciding to make the improvement, or in letting the contract. Pursuant to the terms of the statute, it adopted the preliminary resolution for the work, and, after the preliminary hearing, decided, that the district was properly bounded, that the special benefits to the property in the district and the benefits to the city would be equal to the estimated cost of the improvement, confirmed the resolution, advertised for bids for the contract, and, thereafter, let the contract. The statute does not require that on this preliminary hearing the board shall determine the amount of benefits to property owners, or the amount of benefit to the city, but only requires that it must find that the aggregate benefits are equal to the estimated cost. If at this time, however, the board was of the opinion that the city would incur a liability of over $5,000, it was its duty to submit the matter of an appropriation to the council; but if the board entertained any such opinion, no finding thereof appears. In the absence of anything to the contrary, the court must presume that the board acted in good faith, and did not intend to violate the law. Indeed, its subsequent action in finding that the special benefits to the property in the district were as much as the contract price, would support the inference that the board honestly believed, when the contract was let, that the entire cost of the work would be borne by the property owners of the district. The fact that after the work was fully con
Lottery speculation has long been prohibited by law. The theory of appellant would make public improvement contracts so speculative that the resultant evils would differ more in extent than in their inherent character from those of the lottery, and we do not accept appellant’s theory as tenable. The contract was valid when made. The statute confers no power on the board to impair its obligations. The contingency of this deficit arose from the law, and entered into and became a part of the order for the improvement, and the provision in the act with reference to an appropriation by the council, where the deficit is over $5,000, cannot affect the rights of the contractor, where, as here, there was no affirmative finding by the board, before the letting of the contract, that the discrepancy would be more than that sum.
This conclusion does not render the proviso in the statute ineffective. Under some conditions it may affect the rights of the contractor. It is, under all conditions, binding on the members of the board, and a violation by them of its provisions, would subject them to the penalties imposed on officers for the violation of duties prescribed by the law.
We' think this position is correct on this branch of the ease, for even if it should be conceded that the contractor
The remaining ground of contention is the remedy pursued here by appellee, the appellant asserting that its remedy, if any, is by mandamus.
Here there had been no judgment rendered. The action is for breach of contract. The plaintiff has fully performed all things required of it, by the terms of the contract. The amount of the difference between the contract price, and the total amount of assessments, as finally corrected, must be paid out of the city treasury. A demand for this was made and refused. The plaintiff was entitled to a judgment for this amount. If the judgment obtained shall not be paid, mandamus will then be the appropriate remedy under §8692, supra, but nothing alleged in this complaint would warrant resorting to that remedy. Board, etc., v. Branaman (1907), 169 Ind. 80; King v. Board, etc. (1904), 34 Ind. App. 231; 26 Cyc. 168.
There is no error in the record. Judgment affirmed.