25 Ind. App. 485 | Ind. Ct. App. | 1900
—Complaint in four paragraphs by appellee Baxter, as assignee of the contractor, to collect a sewer assessment. Demurrer overruled. Answer in denial and second paragraph of special answer. Demurrer to second paragraph sustained. General denial withdrawn and judgment on the pleadings. Errors are assigned upon the rulings on the demurrer to the complaint and answer.
Objection is made to the complaint that it fails to show the council ever adopted any resolution declaring the necessity for the sewer; that it is not shown the contract was let to the best bidder; and that it is not shown any notice was given of the adoption of the resolution for the construction of the sewer. The complaint avers that the council passed and adopted a resolution “declaring the desirability of, and ordering the construction of, a sewer along ” (giving the route). The language used in the pleading is sufficient as to the statutory requirements of a declaratory resolution. Declaring the desirability of an improvement substantially complies with the statute. Besides, the council has the exclusive right to judge of the necessity for the improvement, and when it acts, and orders the improvement made, such action necessarily involves a determination of the necessity for the work. See Pittsburgh, etc., R. Co. v. Hays, 17 Ind. App. 261.
As to the second objection, it is averred that notice was published calling for bids, and afterwards the bid of a person named was accepted.- The council has the right to choose between bidders, and in exercising that right we must presume that it “acted in good faith and for the best interests of both the city and the property holders, and exercised its discretionary powers wisely.” Boyd v. Murphy, 127 Ind. 174.
The complaint does not show that any notice of a resolution of necessity was given. The pleading avers that, after the adoption of the resolution declaring the desirability of a sewer, specifications were adopted and the city clerk or
It has been decided that the resolution of necessity and ■the resolution ordering the work may be adopted by the council as one resolution. Barber, etc., Co. v. Edgerton, 125 Ind. 455. The statute above set out requires that notice of the resolution of necessity shall be given, but it has been held that “As to whether a particular improvement is, or is not, necessary must, of necessity, be left to the discretion of the common council of the city where the improvement is to be made. This question, we think, under the statutes in force in this State, may be determined by such council
In Hughes v. Parker, supra, in answer to the argument that the council never acquired jurisdiction of the subject-matter of the improvement, or of the persons of the property owners assessed therefor, for the reason that no resolution was ever passed, or notice thereof given, as required by §4289 Burns 1894, the court said: “It must be admitted that the proceedings of the council in this matter were irregular. The resolution of necessity should have been adopted and notice thereof given as provided in the statute. But it has been repeatedly held that such resolution and notice are not essential to give jurisdiction to the council, provided only that notice and a hearing are given to the property owners before the making of the final assessments.” The complaint shows that notice was given for hearing objections to the final estimates as provided in §4294 Burns 1894, and under the above rulings this was sufficient, without any resolution of necessity and notice thereof. The demurrer to the complaint was properly overruled.
The second paragraph of answer alleges that on August 18, 1896, the common council by resolution ordered the construction of the sewer; that the resolution contained among others the following provision: “And it is further ordered and ordained that in the opinion of the common council of said city it is desirable to pay, and the same is hereby ordered to be paid, the entire cost of building, constructing, and laying the above described sewer, out of the general funds of said city, and the city clerk is hereby ordered to advertise for bids for three consecutive weeks in the Evening Herald of said city for sealed proposals for the construction of said sewer;” that the clerk duly adver
Section 4292 Burns 1894 authorizes a city council, if deemed just and right by it, to pay any part or all of the expenses of an improvement like that in question out of the general revenue of the city. Whether such expenses should be so paid would be within the discretion of' the council, just as it is within the council’s discretion whether or not the improvement shall be made at all. The theory of the statute is that property along the line of. the improvement will be especially benefited, and should pay the expenses, and a resolution ordering that an improvement be ..made and saying nothing about the manner of deriving the funds to pay the expenses would mean that the expense was-to be assessed on thé property along the improvement. But the above section is in the nature of an exception, and if the council in the exercise of a sound discretion deem it just and right it may order the expenses paid as therein provided. In the case at bar, for some reason deemed by the council sufficient, it made the choice and proceeded in the matter until the
Upon the facts as pleaded the doctrine of estoppel does not apply as to the appellants. It is true they saw the work progressing, and made no objection, but the council had said by a resolution that the expense was to be paid out of the general fund. The question of a special assessment against appellants’ property was not presented during the progress of the work. Appellants may or may not have known of the city’s indebtedness, but this fact was known to the contractor when the contract was made. It is a familiar rule that a person contracting with a municipality must at his peril inquire into the power of the municipality or of its officers to make the contract. Dillon Munic. Corp. (4th ed.) §447; Clements v. Lee, 114 Ind. 397; Board, etc., v. Galloway, 17 Ind. App. 689; Johnson v. Common Council, etc., 16 Ind. 227; Woodruff v. Board, etc., 10 Ind. App. 179 ; State, ex rel., v. Common Council, etc., 138 Ind. 455; Board, etc., v. Fertich, 18 Ind. App. 1; Board, etc., v. Allman, 142 Ind. 573; Bridge Co. v. Board, etc., 19 Ind. App. 672.
Appellants knew the improvement was going on, and' it became their duty as property owners to inform themselves as to the authority by which the council was making the improvements. City of Elkhart v. Wickwire, 121 Ind. 331. But when they did seek information from the public records of the council up to and including the completion and acceptance of the work, they were informed that the cost was to be paid out of the general fund of the city, and that it was not to be paid for by special assessments. Under the pro
■ If the city entered into a contract which it had no power to make, it does not necessarily follow, simply because the work has been done, that after the work is done a material part of the contract may be changed so that it may be made effective. The contractor accepted and acted upon the method originally adopted. The fact that a property owner acquiesced in that particular method by his silence does not warrant the contractor in saying that he did the work* on the faith of receiving pay from the property owner. The work was done with knowledge of the fact that it was to be paid from the general fund of the city. The contractor must know whether the city could make such a contract.
If in fact the work had been completed, accepted and paid for in the manner provided in the resolution, ordinance and contract, the city had no power then to make a new estimate of the cost and assess the cost and expense against property owners along the line of the work. The city in the first instance could adopt either of the two methods, but after it had adopted one and carried the work to completion it could not then adopt the other as supplemental to the first. Whether the contract entered into by the city was void because of the city’s indebtedness, we need not and do not decide. Conceding that the council had the power to make the improvement and provide for paying the cost, when it had completely exercised this special power the power was exhausted. The council’s right to act was by virtue of statutory authority only, and this authority terminated when the work was completed, accepted, and paid for as provided in the resolution and contract. The answer
In Doctor v. Hartman, 74 Ind. 221, it was held that a board of commissioners could not set aside an order accepting the report of viewers in a highway proceeding and dismiss the petition. In Board, etc., v. State, 61 Ind. 75, the right of the board to set aside an order locating a county seat was denied. In City of Indianapolis v. Patterson, 33 Ind. 157, after an estimate had been made, approved by the council, and ordered paid, the council rescinded its order approving this estimate, and adopted and approved another for a less sum. . The court was equally divided upon the question whether the power of the council over the estimate was exhausted when it had first approved it and directed its payment. See, also, City of Chicago v. Wilder, 184 Ill. 397, 56 N. E. 395; Connecticut, etc., Ins. Co. v. City of Chicago, 185 Ill. 148, 56 N. E. 1071; Alford v. City of Dallas (Tex. Civ. App.), 35 S. W. 816; City of Covington v. Ludlow, 1 Metc. (Ky.) 295; City of Madison v. Smith, 83 Ind. 502; Gavin v. Board, etc., 104 Ind. 201.
We are not prepared to assent to a relaxation of the rule requiring strict compliance with statutory requirements by a municipality, to the extent shown in this answer. A city may make improvements and provide for paying for the work, not by virtue of any inherent authority in the municipality, but because the legislature has said that it may. Eot only has the legislature said a city may act in such matters, but it has said how it shall act, and the prescribed statutory method constitutes the measure of its power. It may be true that some of these statutory provisions are
Judgment reversed.