Caldwell v. Bauer

• Decision Date: 21 June 1912
• Docket Number: 22,015
• Citation: 99 N.E. 117,179 Ind. 146
• Parties: Caldwell et al. v. Bauer et al
• Court: Indiana Supreme Court

99 N.E. 117

179 Ind. 146

Caldwell et al. v. Bauer et al

No. 22,015

Supreme Court of Indiana

June 21, 1912

Rehearing Denied January 21, 1913.

From Lake Circuit Court; Frank M. Pattee, Special Judge.

Action by Carl E. Bauer, and others, as taxpayers, against George W Caldwell and others to enjoin the construction of a school building. From a judgment for plaintiffs, the defendants appeal.

Affirmed.

William J. Whinery, for appellants.

John H Gillett, for appellees.

OPINION

Myers, J.

Action by appellees as taxpayers of the city of Hammond against appellants, as contractors, and the school city to enjoin them from constructing a high school building in that city, under contracts with the school corporation.

The errors assigned, and not waived, call in question the sufficiency of the complaint, errors in the conclusions of law, and error in overruling the motion for a new trial. Upon proper request the court found the facts specially and stated its conclusions of law, and as the finding of facts follows the complaint closely, it will be sufficient in determining the first two assignments of error to summarize the findings.

The findings disclose that appellees were taxpayers of the city of Hammond; that the school city of Hammond owned two distinct parcels of real estate on one of which it is proposing to construct the school building complained of the other parcel is in the business district of the city, and now has a substantial school building upon it. That on December 19, 1910, the school city entered into a written contract with Caldwell and Drake appellants, general contractors, for the construction of a new building on the site first above referred to, at a stipulated price of $ 242,440, pursuant to plans and specifications theretofore adopted. The contract provided for diminution of the work and on December 27, 1910, such changes were made that by a supplemental contract the price was reduced to $ 182,206. On December 19, 1910, the school corporation entered into a contract with Lewis and Kitchen appellants, as contractors for heating, power and ventilating the building, at the price of $ 63,177, with a provision for diminution, and on December 27, by supplemental contract, the price was reduced to $ 32,665. Provision is made in and by each contract for the payment of 85% of the amount of labor and material furnished, payable monthly on the architect's estimate and final payment within ten days after completion of the work. At the time suit was begun, January 14, 1911, no work had been done, or material furnished under either contract and none since, and the contract provided for completion of the work by November 14, 1911. That prior to entering into said contracts original or supplemental, the board of school trustees, did not file any statement with the common council of the civil city and the latter gave no consent to the erection of the proposed building. Nor do the records of the trustees or of the council show consent of the latter. That before entering into the contracts, the trustees gave notice of the time and place of receiving bids for the work by a notice one day each week for four consecutive weeks in a daily newspaper published in the city of Hammond, which notice described the proposed building as an industrial high school building; that at no time did the trustees cause any notice to be given, either by publication or posting, of the aggregate debt proposed to be incurred, or of the character or size of the building proposed, or of the nature of the building proposed, and that the proposed building is to be for the use of the seventh and eighth grades of the schools, and other grades and is also to be used in teaching industrial branches and manual training, and is proposed to be three stories in height, 172 by 336 feet in exterior dimensions with recitation rooms in each story, and that one-third of the recitation room space is designed to be used in teaching industrial and manual branches, other than the common school branches, and that the building is one-third larger than it would be if recitation rooms in number seventeen on the first and one on the second floor for industrial and manual training were eliminated, and larger and more expensive than would be required if such rooms were eliminated, and such rooms are not suitable for public school, and high school purposes, owing to the character of construction which is found in detail, and that in carrying out the plans it will require, and it is intended, to install and maintain large amounts of special machinery and appliances, such as printing presses, type, lathes, electrical appliances, foundry equipment and the like, and it is proposed to teach therein electrotyping, printing, binding, advanced wood working, cabinet making, elementary wood working, machine shop, foundry, steam and gas fitting, plumbing, electric wiring, domestic science, and to enlarge, develop, and increase the same in the future, and to pay teachers out of revenues of the city, to teach such trades, and the building was to be denominated the Hammond Industrial High School, of all of which facts the contractors had notice when the original and supplemental contracts were executed. That it was not the purpose to begin teaching all the foregoing subjects at once, but to begin with a few branches only. That the school city is in need of a new building for grade and high school purposes, and the trustees are now renting four rooms for these purposes, owing to its want of capacity in its buildings. That the present high school building is not large enough to accommodate the pupils, and is below the present standard of modern school buildings, from the standpoint of sanitary conditions. That a large percentage of the people of Hammond are engaged in industrial pursuits, and many of the pupils quit school at an early age, and it is proposed by teaching industrial and manual pursuits, to induce them to remain in school. That the school city has for one year past had one class in industrial training, and it is proposed to increase and extend and broaden the teaching of industrial and manual pursuits, and to expend the school revenue in doing so. That before entering into the contracts herein referred to, appellants had employed an architect who had prepared the plans and specifications for the work, for which he was paid before the contracts were let $ 4,000, and on December 29, 1910, he was paid $ 2,446.13, to apply on his account for services in preparing the plans, and under his contract is to receive 3% of the cost of the building for preparation of the plans and specifications and 2% for superintending the work of construction. That the ordinary expenses for heat, light and janitor service, and necessary repairs of buildings and furniture, is $ 2,000 per month. That the taxable property of the city of Hammond is $ 8,667,500. That the taxes levied in the year 1910, payable in 1911, are $ 1.96 per hundred dollars of valuation from the apportionment of which a revenue will be derived for special fund of 60c per hundred dollars, including 10c for truancy fund, and 25c to the industrial high school fund. That from the 60c levy the school city will receive $ 28,474.26 in July, 1911, and $ 10,531.26 in January, 1912, and from the industrial school levy $ 11,864.25 in July, 1911, and $ 4,388.15 in January, 1912, and $ 600 poll tax in July, 1911, and $ 150 poll tax in January, 1912, and $ 100 from delinquent taxes and these are all the taxes to be collected and no more from any levy or source. The other levies constituting a total of $ 1.96 were made for special purposes and are applicable to them alone. That the school city had on hand Dec. 19, 1910, to its credit in the special fund $ 3,099.51, and on Dec. 27, 1910, $ 2,047.85, together with the further sum of $ 9,000 created by a special levy from year to year, which aggregate sum of $ 12,099.51, on Dec. 19, 1910, and $ 11,047.85 on Dec. 27, 1910, respectively was the sole sum or property the school city had on hand or in expectancy, applicable to the payment for work done under the contracts of those dates, except the revenues to be derived as aforesaid, from the current levies. That on Dec. 19, 1910, the civil city of Hammond was indebted $ 158,000, and the school city was indebted in the aggregate sum of $ 95,000 upon bonds issued by it under the act of the General Assembly of 1903 and the amendments thereto, composing two sums, one a refunding bond series and denominated in the tax levies as "Special Funding Fund", of which $ 3,000 will come due and be paid May 15, 1911, leaving at that time $ 92,000, and the other special "Wallace Fund", $ 5,000 of which will be due and be paid Dec. 1, 1911, leaving at that time a balance of school city indebtedness of $ 87,000. That the special fund will be depleted $ 2,000 per month from Dec. 19, 1910, by necessary charges against it. That on Dec. 19, 1910, and for many years prior thereto, the school city owned a tract of land 222.5 feet in length north and south fronting on Hohman Street with a 14 1/2 foot alley on the east, and 195 1/2 feet east and west fronting north on Fayette Street, on which was a substantial brick school building midway of said lot north and south, 100 feet long and 100 feet wide used for school purposes, and is largely attended by pupils of all grades, including high school pupils. The building is in the business center of the city of Hammond, a city of between twenty and twenty-five thousand inhabitants, and Hohman Street is one of the main business streets, and the building fronts, and the main entrance is on Hohman Street; that there is a street car line on the street upon which street cars are operated frequently at all hours, and all kinds of...