166 Ind. 78 | Ind. | 1906
—This appeal is prosecuted by appellants to reverse an interlocutory order of the lower court granting a temporary injunction against the city of Laporte and the Laporte Water Supply Company. The order in question is as follows:
■ “And the judge of this court, being duly advised in the premises, orders that the defendants, their officers, agents and servants, and each of them, be and are hereby severally restrained and enjoined—said city of Laporte, from paying money or issuing any of its evidences of indebtedness' to said Laporte Water Supply Company and from paying directly or indirectly said bonds of said company, or any part thereof, or any interest thereon, and said company from making any demands upon said city for money and from receiving from, or presenting for payment to, said city, or negotiating any warrants of said city, and from paying or applying any money received by it upon said warrant issued March 28, May 9, May 31 and July 11, 1904, or either of them, upon said bonds or interest coupons—until the final hearing of this cause, or the further order of the court, to which the defendants except.”
The portion of the complaint in the case at bar which sets out facts involved in the former appeal discloses, among other things, the issuing of the bonds of the Laporte Water Supply Company to the amount of $65,000, in pursuance of an ordinance passed by the city of Laporte on August 7, 1899, the payment of which, as alleged, was guaranteed by said city. The former action was commenced on August 26, 1899, and during the pendency thereof in the lower court, and in the Supreme Court on appeal, the defendants proceeded with the construction of the water plant, and the city made payments on said bonds and the accrued interest thereon to the amount of $22,775, leaving outstanding at the time said judgment was reversed $53,000. The complaint then alleges that after the decision of the cause in the Supreme Court the defendants (appellants herein) advanced or set up the claim that they had a right to enter into a new contract under which the city could pay the water supply company for the water pumped by the company, and thereby provide funds out of the city treasury to pay the remainder of said bonds, together’ with interest thereon. Accordingly, on October 26, 1903, after the reversal of the judgment in the former cause, the common council of said city adopted the following resolution:
“Be it, and it is hereby, resolved by the common council, that the board of water commissioners be authorized to purchase water of the Laporte Water Supply Company, in such quantities as in their judgment the needs and interests of the city may require, and for fire protection, at rate not to exceed three cents*81 per thousand gallons, and in addition to furnishing the steam that may he required to pump the same. This resolution shall not, however, be construed as authorizing said 'board of water commissioners to purchase water in excess of one million gallons .daily. Said authority shall expire when other or different arrangements shall be made.’’
The petition alleges that the aforesaid resolution was adopted in pursuance of a scheme for the evasion of the decision or holding of this court upon the former appeal, in order that the funds of the city might be applied to the payment of the bonds issued by said water supply company, and that an arrangement was made and entered into by the officers of the city of Laporte and said water supply company, under which the warrants mentioned and referred to in the injunction order were issued, and that said de-' fendants were proceeding to carry out said purpose and arrangement to apply the revenues of the city to the payment of the bonded indebtedness of said company. It is averred, among other things, that under the aforesaid arrangement, made under said resolution, the city of Laporte, through its common council, is causing water to be pumped by the use of the water plant of said supply company into a certain mentioned reservoir; that the city is issuing its warrants monthly to said supply company for amounts ranging from $634 to $877; that beginning with the month of March, 1904, two of these warrants had been paid out of the general fund of the city, against which all of said warrants were drawn; that the scheme concocted under the resolution of October 26, 1903, contemplates and intends the continuance of the city to take water from said source of supplies and to pay said water supply company such sums from time to time as shall in the aggregate meet and pay the principal and interest of the bonds in question as the same shall fall due. It appears that on May 2, 1900, immediately after the organization of said water supply company, in pursuance of a contract between said city and
The cause was submitted to the judge for hearing upon the verified petition or complaint of appellees. To defeat the granting of the order, and for the purpose at least of showing that there was another action pending in the Laporte Circuit Court between the same parties, based on the same right of action, appellants introduced the affidavit of H. W. AVorden, together with all files and papers, orders made and entered in cause No. 5,084, entitled Scott et al. v. City of Laporte et al., which was pending in the Laporte Circuit Court, together with the opinion and judgment of the Supreme Court given and rendered in the appeal of said cause. Upon the evidence the judge granted the interlocutory or preliminary order hereinbefore set out, which, under the reservation therein provided, is to continue in force until the final hearing of the cause or the further order of the court.
In determining at the final hearing the question of granting a perpetual injunction the court no doubt will be very materially aided by the decisions of this court in the appeals of Voss v. Waterloo Water Co. (1904), 163 Ind. 69, 66 L. R. A. 95, and Scott v. City of Laporte (1904), 162 Ind. 34, so far as the same are applicable to the facts. When tested by the rule which we have herein asserted, we discover no grounds for disturbing the interlocutory order involved, and, therefore, it is affirmed.