Bartles v. City of Garrett
| Decision Date | 16 May 1929 |
| Docket Number | 13,410 |
| Citation | 166 N.E. 437,89 Ind.App. 349 |
| Parties | BARTLES v. CITY OF GARRETT |
| Court | Indiana Appellate Court |
From Steuben Circuit Court; Clyde C. Carlin, Judge.
Action by Alvey C. Bartles against the city of Garrett. From a judgment for defendant, on demurrer to the complaint, the plaintiff appealed.
Affirmed.
P. L DeVita, for appellant.
Finley A. Nash, for appellee.
This is an action wherein the appellant, Alvey C. Bartles, sued the city of Garrett, Indiana, to recover damages for breach of a contract entered into between appellant Bartles and the appellee, for the erection of a certain public building known as a "community building," to be built according to plans and specifications under authority of a certain resolution enacted by the common council of the city, and entered into September 10, 1925.
The complaint alleged that, after the execution of the contract the appellant, in compliance therewith, proceeded upon the performance of the contract according to the plans and specifications, and proceeded with the actual erection of said community building, and had supplied labor and material in the sum of $ 900 and proceeded with the excavation and erection of the foundation, when he was notified by the mayor and the council of said city to cease operations. He thereupon brought this action and prayed judgment in the sum of $ 10,000 for breach of said contract.
Demurrer was filed to the complaint, which demurrer was sustained by the court. Appellant refused to plead further and judgment was rendered against him, and he brought this appeal. The grounds of the demurrer were that the complaint did not state facts sufficient to constitute a cause of action, for the reason that the complaint did not disclose that the mayor or common council had any authority to authorize the execution of the contract sued upon, and that there was no authority delegated to the mayor or common council to build such a building or enter upon such a contract.
The appellant contends that the power is granted by § 10284 Burns 1926, Acts 1905 p. 236, and relies upon subd. 51 of that act which reads "The common council of every city shall have the power to enact an ordinance for the following purposes: . . . to establish, maintain and regulate pounds, market houses, market places, houses of refuge, pest houses, hospitals, dispensaries, engine houses and other public city institutions. " Subd. 53, reads, "To carry out the objects of the corporation, not hereinbefore particularly specified."
It is a principle of statutory construction everywhere recognized and acted upon not only with respect to penal statutes, but to those affecting only civil rights and duties, that, where words particularly designating specific acts or things are followed by and associated with words of general import, comprehensively designating acts or things, the latter are generally to be regarded as comprehending only matters of the same kind or class as those particularly stated under the doctrine of ejusdem generis. 2 Lewis, Sutherland Statutory Construction (2d ed.) § 422, p. 815, and cases there cited.
The statute under which a municipal corporation is created is its organic act. Such a corporation can exercise only the following powers: (1) Those granted in express words; (2) those necessarily implied in or incident to the powers expressly granted; and (3) those essential to the declared objects and purposes of the corporation--not simply convenient, but indispensable. 1 Dillon, Municipal Corporations (5th ed.) § 237, p. 449, and cases there cited. Muncie Nat. Gas Co. v. City of Muncie (1903), 160 Ind. 97, 66 N.E. 436, 60 L. R. A. 822; Pittsburgh, etc., R. Co. v. Town of Crown Point (1896), 146 Ind. 421, 45 N.E. 587, 35 L. R. A. 684; Kyle v. Malin (1856), 8 Ind. 34; Smith v. City of Madison (1855), 7 Ind. 86.
The presumption is that any power has been withheld that is not expressed or fairly implied,...
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