42 Ind. App. 657 | Ind. Ct. App. | 1908
Appellant brought this suit in the Decatur Circuit Court to enjoin the city of Greensburg from levying an assessment for a sanitary s.ewer improvement, the members of the common council from making, approving and confirming an assessment roll for said improvement, the city clerk from certifying the assessment roll to the city treasurer, and the city treasurer from collecting the assessment.
The amended complaint was in two paragraphs. A separate and several demurrer for want of facts filed by the defendants to each paragraph was overruled as to the first and sustained as to the second.
Said first paragraph alleges, in substance, that the plaintiff is, and had been for thirty years past, a citizen, voter, taxpayer and freeholder residing in the city of Greensburg, Indiana, and for the past ten years had owned and still owns certain real estate in said city, bordering and abutting along and upon Broadway, a- street of said city; that defendants Elder, Hart, Yogel, Eobison, Hornung and Miller are, and have been for some months last past, the duly qualified and
Said agreement recites-that it is made and entered into by and between the city of Greensburg, of the first part, and Will C. Pulse, Alexander Porter and William Porter, under the firm name and style of Pulse & Porter, party of the second part; that said second party contracts with said first party to construct, erect and complete for said city a sanitary sewer system, consisting of a sanitary disposal plant and all mains and branches, to furnish all material and perform all labor necessary to complete said system according to the specifications hereto attached and made a part of the contract, and in accordance with maps, plans and profiles now on file in the office of the city civil engineer and in the office of the city clerk, which maps, plans and profiles are made a part hereof by reference, and so taken as though they were attached hereto; that said second party shall also furnish all material, perform said labor, and complete said system in accordance with the resolution passed and approved by the common council of said city on May 10, 1905, and readopted on-day of-, 1905, in compliance with an act of the General Assembly of the State of Indiana, entitled, “an act concerning municipal corporations,” approved March 6, 1905 (Acts 1905, p. 219, §3462 et seq. Burns 1905), and to the approval and acceptance by the common council of said city; that said- first party agrees to pay said second party, for the faithful fulfilment of the conditions of the contract, the sum of $19,645 for the construction of
Then follow plans and specifications referred to in said paragraph, and a bond for $49,000 to the city of Greensburg, executed by Pulse & Porter as principals and the Federal Union Surety Company as surety.
The complaint further alleges that said city never approved said pretended bond for the faithful performance and execution of said contemplated improvement, nor has said city authorized any one of its officers to approve the same, nor has any of its officers attempted to approve said pretended bond; that said bond mentioned herein is attached to said pretended contract, and is in the office of the mayor of said city; that said Pulse & Porter never entered into any' written contract with said city for the construction of said sewer, and that no written contract with said city was ever entered into for its construction; that none was.ever authorized by said city; that no officer was ever authorized or empowered to enter into a contract in favor of said city, and none was ever ratified by said city; that no bond for the faithful execution of the work, or contract for the construction of said sewer, was ever filed with and approved by the common council of said city, and there is none now approved by said city council; that since June 27, 1905, said Pulse & Porter have been engaged in the construction
It appears from the evidence that on May 10, 1905, the common council of the city of Greensburg, being a city of ■the fifth class, resolved: “It being deemed necessary that a sanitary sewerage system should be constructed for said city of Greensburg, which, from its size and character, is not only intended and adapted for use of property holders whose property abuts on the line of such sewer, but is also intended and adapted for receiving sewage from collateral drains already constructed, or which may be constructed in the future, the same is hereby ordered as follows, to wit: A complete sewage disposal plant to be located upon the following described real estate [describing certain real estate in said city].” The description of the sewerage improvement covers more than twenty-five pages of typewritten matter, and sets out such matters and things as are required by the law governing the making of-such improvements.
Afterward a written contract was prepared and presented to Pulse & Porter, who signed it and returned it to the clerk of said city with a bond attached, also signed by them as principals and the Federal Union Surety Company as surety, in the sum of $49,000, conditioned for the faithful performance of said contract. The contract contained a copy of the specifications 'and so much of said written bid as set forth in detail the price to be paid for such improvement. It also referred to the aforesaid declaratory resolution, plans, maps and profiles, and by reference thereto made them a part thereof. These were the same plans, specifications, maps and profiles -that had been formerly adopted by said council and placed on file in the offices of said engineer and said clerk.
Pulse & Porter, having signed said contract, executed a bond and turned the same over to the city, and the city, having taken and kept possession of them, in good faith relying
During all of said time said city, through its proper officers, was employing and paying inspectors, superintendents and engineers, who were upon the work, continuously supervising and directing the same. Said council had actual knoAvledge of and was acting upon said contract, and at a regular meeting thereof in May, 1906, said contract was read and discussed in open council, and appellees' Pulse & Porter constructed said sewer according to the terms and conditions of the aforementioned contract, declaratory resolution, maps, plans, profiles and specifications. During this time appellant Avas a resident of said city, and the owner of and residing in property located on South Broadway, a public .thoroughfare of said city, and saw and knew said improvement was being made by Pulse & Porter. He saw them lay the seAver in said street in front of his house sometime in August, 1905. He stood by while said improvement was being made, but gave no notice, verbal or otherwise, to Pulse & Porter, or to said city, or to any one that he had any objections to said improvement, that there was any invalidity in the proceedings thereof, that he Avould contest any assessment that might be made against his property by reason thereof, or that he was opposing or would oppose said improvement or any assessment of benefits that might be made or occasioned thereby. -Nineteen miles of sewer-pipe were laid in the streets of said city and a sewage disposal plant erected at a cost of many thousands of. dollars. Two months after the entire work was completed, appellant filed a suit in the circuit court, declaring the entire proceedings void, and asking that the city be enjoined from making any assess
The cause was put at issue, evidence heard, and a finding by the court that the plaintiff take nothing by his suit.
Errors relied upon are the action of the court in sustaining the several demurrers to the second paragraph of the complaint, in overruling the demurrer to the second paragraph of the several answers, and in overruling appellant’s motion for a new trial. But the- controlling question presented by the various assignments of error, and briefly stated, is whether this suit is a collateral attack upon jurisdictional or administrative steps taken by the city council in the proceeding in question.
It is claimed that the statute (§8959 Burns 1908, Acts 1905, pp. 219, 404, §265) provides that the contract for a municipal improvement shall be in writing, and that the contract in suit is invalid because not in writing, and therefore any lien based thereon cannot be enforced; that the common council can only contract by an order, resolution or ordinance passed in the manner prescribed by statute, and a pretended contract entered into by the mayor and clerk of a city, without such an order, resolution or ordinance is null and void; that where the parties are to meet in the future to execute a contract, the award is not a contract, nor the entering into a contract based upon proposals, it is merely the acceptance of a bid, and does not constitute a contract; that the acceptance of ..a bid by the common council was not the execution of a contract, because it was expressly stated in the bid that the contract should be entered into within five days, and the act of 1905, supra, provides that after the award is .made a written contract shall be entered into.
In Ross v. Stackhouse, supra, it is said: “The matter of accepting or rejecting bids, and of letting the contract, is purely administrative in character, depending entirely upon the discretion of the common council.” Citing Platter v. Board, etc., supra.
Edwards v. Cooper (1907), 168 Ind. 54, was a suit for the foreclosure of a sewer assessment against certain real estate. In the course of the opinion, at page 65, the court say: “ It is further to be recollected, as the Supreme Court of the United States had occasion to point out (Hibben v. Smith [1903], 191 U. S. 310, 24 Sup. Ct. 88, 48 L. Ed. 195), that assessments for public improvements, under the practice as it exists in Indiana, are in the nature of judgments. When, therefore, we have before us a ease like this, in which the validity of an assessment is collaterally questioned, and it can be really said that the extent of the power has been left so elastic as to call upon the tribunal to determine its authority in a particular instance, we are of the opinion that, so long as there remains color of authority to proceed, the decision of such tribunal upon the extent of the power to modify is so far of a jurisdictional nature that the courts are not at liberty, in the absence of fraud, to overthrow the decision on collateral attack.” The opinion also quotes, at page 70, from the opinion of Wilson v. Simmons (1896), 89 Me. 242, 254, 36 Atl. 380: “ ‘ “ Generally speaking, it is the difference between substance and form, between void and voidable, or between void action and imperfect action. Error or nullity goes to the foundations, and discovers that the proceedings have nothing to stand upon, while irregularity denotes that the court was acting within its jurisdiction, but failed to consummate its work in all respects according
Pulse & Porter signed the written proposal and contract, and submitted with it the bond. In 'doing this they did what was required of them by §8959, supra. For a failure to perform the work according to the plans .and specifications the bond could have been enforced against them. No fraud is charged or shown. The declaratory resolution adopted, the notice given, the proposal, plans and specifications submitted, the bond executed and approved in accordance with the plans and specifications, all show that the contract was entered into in fact, if not in form.
The failure to make objection to an improvement, as against a contractor who is acting in good faith and under color of law, is an acquiescence in what is being done (Ryason v. Dunten [1905], 164 Ind. 85; Matthews v. Murchison [1883], 17 Fed. 760), and such person will be denied an injunction to prevent- the enforcement of an assessment. Ross v. Stackhouse, supra; Busenbark v. Clements (1899), 22 Ind. App. 557; Boswell v. City of Marion (1907), 40 Ind. App. 289, and cases cited; Liebole v. Traster (1908), 41 Ind. App. 278.
We are not to be understood as intimating that a failure to take steps to arrest an improvement would preclude the making of a defense, where the defect was jurisdictional, nor that S-P estoppel could not arise -where the property owner
Judgment affirmed.
Myers, J., did not participate.
Roby, J., absent.