Merrill v. AbbottMerrill v. Abbott
- Reporters:
- Before:
- Niblack
This was a proceeding to recover the value of certain street improvements, under sections 68, 69, 70 and 71 of the act to provide for the incorporation of cities, approved March 14th, 1867. 1 R. S. 1876, p. 267.
The city enginеer of the city of Terre Haute, on the 9th -day of April, 1874, claiming to act under the authority of -.certain resolutions of the common council of that city, adopted two days previously, gave notice by publication in а newspaper, that sealed pi’oposals would be received by .said common council,at its next rеgular meeting,for grading nnd gravelling so much of Main street of said city as lies *550“between Tenth and Fourteenth streets, including thе gravelling of the sidewalks, according to plans and specifications, then on file in the office of said еngineer.
At such next regular meeting the common council awarded the contract for the proposеd grading and gravel-ling to Joseph Abbott, the appellee, who, after giving bond,, proceeded with the work, and сompleted it in due time,, receiving some partial estimates as he progressed with the work, and a final estimаte after the completion of his contract. This final estimáte was approved by the common council and assessed proportionately against the lots and parcels of ground fronting on the work done by the аppellee. The appellant, being the owner of one of these lots so assessed, and failing to рay the amount assessed against such lot, a precept was issued to the treasurer of said city of Terre Haute, commanding him to sell her said lot to pay the assessment thus standing against it. Before a_ sale could he mаde under such precept, the appellant appealed to the circuit court, where a dеmurrer was overruled to the transcript constituting the complaint, and where, upon a. trial, there was a verdiсt and judgment in favor of the appellee, for the amount assessed against said lot.
The resolutions upon whiсh the city engineer acted in advertising for sealed proposals, and upon which the contract was lеt to the appellee, were as follows :
“ Resolved, That, in the opinion of this Council, the-present condition of Main street, from the east line of theVigo Woollen Mills to Fourteenth street, is not only a public-, nuisance, but detrimentаl to the interests of the city.. Therefore be it further
“ Resolved, That the city engineer be and is hereby instructed to advertise for bids for grading and gravelling the; said Main street, from the east line of the Vigo Woollen, Mills to Fourteenth street, including sidewаlks. Said work to be done at the several property holders’ expense on the. *551line of said work. Bids to be read at our next regular meeting.”
It is well settled, that, before the common council of a. city can proсeed to advertise for proposals and to let a contract for the improvement of any street of such city, there must first be an order of said council for the improvement of such street adopted by a suffiсient vote and entered of record as a part of the proceedings relating to such street improvement. The City of Delphi v. Evans, 36 Ind. 90, and cases there cited. Whether such order shall be by ordinance, by resolution, or by a simple ordеr in writing, has been held to he immaterial, the only requisite in that respect being that the order shall be substantially sufficient in its terms.
It is objected that the resolutions above set out did not amount, in legal effect, to an order for the imprоvement of that portion of the street to which they relate, and that consequently the court below erred in overruling the demurrer to the complaint.
After a careful review of the authorities, we have come tо the conclusion that this objection is well taken. We feel justified in saying that an order for a street improvemеnt must, in appropriate terms, either ordain, resolve, or declare that the street to which it refers shall bе improved, specifying the nature, character, or plan of the proposed improvement in such a way as to give at least a general direction to the letting of the work and the execution of the cоntract contemplated by such order.
Such an order is, in some respects, analogous to a judicial аct, and ought clearly and explicitly to prescribe what it authorizes to be done as regards the contеmplated improvement to which it is intended to apply.
Judged by these definitions, it is evident that the resolutions before us did not constitute a proper order for the improvements which the appellee claims he made under them, but amounted only to an authority to the engineer *552of the city to advertise for bids, leaving everything else рractically open for further consideration.
In the case of The City of Logansport v. Legg, 20 Ind. 315, an order similar in its purport to the resolutions under discussion was brought to the attention of this coui’t, but it was held invalid for want of sufficient votes for its adoption, without any ruling either upоn the form or the substance of the order itself. Hence that case affords no precedent against оur present ruling in the case in hearing.
As a conclusion, we must hold that tbe court below erred in overruling the demurrer tо the complaint, and that, for that reason, the judgment will have to be reversed. Musselman v. Manly, 42 Ind. 462; Brookbank v. The City of Jeffersonville, 41 Ind. 406; Moberry v. The City of Jeffersonville, 38 Ind. 198; Kretsch v. Helm, 38 Ind. 207; McEwen v. Gilker, 38 Ind. 233.
The judgment is reversed, at the costs of the appellee, and the cause remanded, with instructions to the court below to sustain the demurrer to the complaint.