69 Ind. 218 | Ind. | 1879
Petition for a mandate by the appellee against the appellants, as follows :
“The said plaintiff' complains of said defendants, and says, that the relators are now, and for several years last passed have been, resident citizens, tax-payers and voters of said City of Lafayette ; that said defendant The City of Lafayette is now, and for ten years last passed has been, a municipal corporation duly organized pursuant to an act o'f the General Assembly of the State of Indiana,-entitled ‘An act to repeal all general laws now in force for the incorporation of cities, and to provide for the incorporation of cities, prescribing their powers and rights, and the manner in which they shall exercise the same, and to regulate such other matters as properly pertain thereto. ” Approved March 14th, 1867.
“That said defendant Kimmel is now, and for two years last passed has been, the mayor of said city; and that said other defendants are now, and were at the time of the grievances hereinafter mentioned, the councilmen of said city and the only ones, the said city being composed of six wards only, and two councilmen from each ward.
“And plaintiff further avers that heretofore, to wit, in
“And plaintiff further avers that at the annual city election held in said city on Tuesday, the 6th day of May, 1879, the said relators were duly elected trustees of the water works of said city for terms following, to. wit, the said Samuel Ewry for the term of one year, the said Barney Spitznagle for the term of two years, and the said Edward T. Jenks for the term of three years; that on the 8th day of May, 1879, the said relators each received from the clerk of said city, a certificate of his election for the terms aforesaid ; that, on the day last aforesaid each of said relators took and subscribed the oath of office prescribed by law, and caused the same to be endorsed upon his said certificate of election, and thereupon filed said certificate of election with the said oaths endorsed thereon, in the office of said city cleric/
“And plaintiff further avers that said relators ever since the said election have been and still are each of them able, ready and willing to execute a bond with sufficient surety, in such sum as said common council would or should order.
“And plaintiff' avers that said common council have never ‘ ordered ’ the amount for which such bond or bonds should be given by the trustees of the water works of said city.; that after said annual city election, to wit, on the 12th day of May, 1879, the said common council of said city met in regular session, and failed and refused (although requested so to do) - to ‘ order ’ the amount of such bond; that afterward, to wit, on the 19th day of May, 1879, and while the said common council were again.in regular session, the relators requested, in writing,
“ ‘ To the llpiyor and Common Council of the City of Lafayette : ThAp-etjtion of the undersigned respectfully represents : That at tlifcr annual election held in the City of Lafayette on the 6tll day of May, 1879,* the undersigned were elected “ Trustees of the Water Works of the City of Lafayette,” for the terms following, to wit: Samuel Ewry for one ybar, Batnby Spitznagle for two years, and Edward T. Jenks for three years; that on the 8th day of May, 1879, they each received a certificate of'election from the clerk of said city, and subscribed and took, and had endorsed thereon, the oath of office prescribed by law, and filed the same in ^he office of such clerk. Your petitioners further represent that they are required by law to give bond in such “ suift as the common council may order,” for the faithful performance of their duties as such trustees, and for the strict accounting for any funds that shall come into their hands. Your petitioners further represent that they are able, ready and willing to give bond in any sum that your honorable body may “ order.” Wherefore they ask that you “order” the amount for which such bond shall be given. Very respectfully, etc.
(Signed,) “ ‘ Samuel Ewry,
“ ‘ Barney Spiznagle,
“ ‘ Edward T. Jenks.’
“ And plaintiff further avers that said common council failed aud refused, and yet fail and refuse, to order the amount of such bond.
“ Wherefore the plaintiff asks that a writ of mandate may issue to said defendants, commanding them and each 'of them that they, as the common council of the City of Lafayette, shall order and fix the sum at which said rela
Duly verified as required by statute.
The defendants appeared and waived the issuing of an alternate writ of mandate, and filed a demurrer to the petition for want of sufficient facts, which was overruled and exception taken. Apart of the defendants then answered as follows:
“ The said defendants, except the defendants Murphy, McGrath, McGiuley, Dufiie and 'Washburn, for answer to the petition in this case, show to the court:
“ That they admit the said City of Lafayette to be a municipal corporation as charged in the petition, and said other defendants are the mayor and common council of said city, and that said city owns and operates a system of water works, constructed in 1876, as charged, and that at the annual city election, held on May 6th, 1879, the said relators received all the votes which were cast for the offices of trustees of the water works of said city, and that they took oath and presented their bonds, as charged in the petition, and that the common council of said city refused to act on said bonds, and that said relators are, and for a number of years last passed have been, resident citizens, tax-payers and voters of said city.
“ But these defendants say that the claim which said relators make in their said petition is grounded solely on a statute of Indiana, approved March 25th, 1879, entitled ‘ An act to authorize cities and incorporated towns to construct, maintain and operate water works, issue and sell bonds to pay for such construction, repealing all laws in conflict with this act, and declaring an emergencythat although said act went into force and effect from and after its passage and approval, and presumptively was known
“ Wherefore the defendants say the said relators are not entitled to the writ of mandamus prayed for by them.”
The plaintiff filed a demurrer for want of sufficient facts to the answer, which was sustained and exception taken. The defendants who had answered declining to answer further, judgment as prayed for. was rendered against them as well as against those who had not answered.
Error is assigned upon the rulings upon the respective demurrers.
The act of March 25th, 1879, referred to in the answer, (Acts 1879, p. 88,) provides for the ■ erection of water works by certain cities and incorporated towns, and applies to cities and towns in which water works have already been constructed, or are in process of construction. The 6th and 7th sections of the act are as follows:
“ Sec. 6. The common council of any city or incorporated town in which water works have been constructed, or are now in process of construction or extension, or where
“ Sec. 7. Said trustees shall receive such compensation as the common council or board of trustees may determine, and shall give bond, in such sum as the common council or board of trustees shall order, for the faithful performance of their duties, and the strict accounting for any funds that shall come into their hands; and they shall manage, conduct and control the works, furnish supplies of water, collect water rents, appoint all necessary officers and agents, and determine the tenure of office and amount of salaries of the officers and agents so appointed.”
Other powers and duties are conferred and imposed upon the trustees of the water works, as that they may make by-laws for the management and protection of the water works, assess and collect water rents, apply any surplus money, after paying the expenses of operating the works, to the repair, enlargement or extension of the works, or to the interest on any loan made for their'construction, make monthly reports of receipts and disbursements of money, and weekly deposits with the treasurer, the money deposited to be kept separate and to be di’awn out of the treasury only upon the order of two of the trustees, countersigned by the clerk of the water works.
The act repeals all laws and parts of laws in conflict therewith, and took effect from and after its passage, an emergency being declared.
It is not contended by the counsel for the appellants, as we understand their brief, that the common council may legally, and for all time, refuse to establish such board, and thereby defeat the purpose of the law, and l’etain control of the water works, instead of letting such control pass to the trustees as contemplated by the act in question. They claim, as we understand the brief, that it was the imperative duty of the common council at the proper time to establish such board, which duty might have been enforced by mandate; but that until the common council had established such board, either voluntarily or in obedience to a mandate, there could be no election of the trustees of the water works.
If the trustees of the water works cannot-be legally elected until the common council shall have passed a resolution or ordinance establishing such board, and if the common council refuse to establish such board until compelled to do so by mandate, the evident purpose of the Legislature will be, in a great measure, thwarted and subverted. It was clearly the purpose of the Legislature that trustees should be elected at the city election to be held next after the passage of the act; hence the emergency clause putting the act at once in force, and immediately repealing all laws and parts of laws inconsistent with the act.
The powers and duties of the trustees of the water works are not to be prescribed by the common council. These are provided for by the act itself, and the common council have nothing to do in this respect, except to establish the board.
And it seems to us, taking the entire act into consideration, that it was not the intention of the Legislature, that
The law provides for the election of the trustees absolutely, and not upon the condition that the board shall have been established, or after the same shall have been established, by the common council. The language of the statute is, that “ said trustees shall be elected at the annual city election by the qualified voters of said city,” etc. The right of the electors thus to elect the trustees can not, as we think, be destroyed by the failure of the common council to discharge a merely formal duty imposed upon them.
The election of the trustees, therefoi’e, was not invalid on the ground that the common council had not established the board previous to the election. It may be here observed, also, that it was the duty of the common council to determine by an order the sum in which the* trustees should give bond; and this duty may be enforced by mandate. /
There was an abundance of time after the passage of the acji in question, and before the election, for the common council to have established the board of trustees of the /water works; and we are not aware that any notice of such proceeding was necessary to give it validity. “ Every by-law imposing a penalty or forfeiture for the violation thereof,” must be published two weeks. 1 R. S. 1876, p. 297, see. 57.
But it is insisted by the appellants that the want of notice of the election thus held, combined with the- want of any information on the part of so large a number of the
If the election was otherwise regular, the want of any notice thereof, previously given, will not invalidate it. Carson v. McPhetridge, 15 Ind. 327; The State v. Jones, 19 Ind. 356; The People v. Cowles, 13 N. Y. 350; Dishon v. Smith, 10 Iowa, 212; The People v. Hartwell, 12 Mich. 508; The People v. Brenham, 3 Cal. 477; State v. Orvis, 20 Wis. 235 ; State v. Gœtze, 22 Wis. 363.
If the people of Lafayette were so generally ignorant of the existence of the law as is alleged in the answer, that ignorance related to mere matter of law, and not to matter of fact; and they can not complain of their ignorance of law. It is said by a standard author that “ Every man is presumed to be cognizant of the statute law of this realm, and to construe it aright; and if any individual should infringe it through ignorance, he must, nevertheless, abide by the consequences of his error. It will not be competent to him, to aver, in a court of justice, that he has mistaken the lavq this being a plea which no court of justice is at liberty to receive.” Broom Leg. Max. 267.
As all persons interested were bound to take' notice of the existence of the law, and therefore of the election for trustees of the water works to be held under it, there is nothing in the case to take it out of the general rule;Uhat a failure to give the required notice of an election willhjot render it invalid.
The counsel for the appellant have cited two cases upoii which they rely for a reversal of the judgment below ; but we are of the opinion that they are very clearly distinguishable from the case before us. One of the cases is that of Foster v. Scarff, 15 O. S. 523. In that case, one Casad had been elected probate judge, to serve for a term of three years, but he died before the close of his term, and one Taylor was elected in his place. The governor wrong
• The other case cited is that of State, ex rel., v. McKinney, 25 Wis. 416. There too the ignorance complained of Avas ignorance of fact and not of law. The syllabus of the case is as follows : “ Where the fact that a vacaucy existed in a county office Avas not known to any considerable portion of the electors of the county, and no public notice Avas given before the election, officially or otherwise, that such office Avas to be filled, and the great body of electors Avho Amted for other officers did not vote for any person to fill said office : Held, that the election, as to such office, Avas invalid.”
In the case before us, there was no question as to a
From the best consideration we have been able to give the case, we are led irresistibly to the conclusion that no error was committed by the court below, either in overruling the demurrer to the petition, sustaining the demurrer to the answer, or in awarding the mandate as prayed for.
The judgment below is affirmed, with costs.
Petition for a rehearing overruled.