OPINION
Monks, J.
This
action was brought by appellant, a resident and taxpayer of
the city of Lebanon, to enjoin said city from letting a
contract for the improvement of a street in said city.
Afterwards supplemental complaints were filed making
additional parties defendant. Each of the appellees filed a
demurrer for want of facts to the complaint and the same were
sustained, and appellant refusing to plead further judgment
was rendered against him on demurrer.
The
assignment of errors calls in question the action of the
court in sustaining each of said demurrers.
Omitting
the formal parts of the complaint, it is averred that the
tracks of the appellee, "the Chicago and Southeastern
Railway Co., occupy the center of east Railroad street, along
the full length thereof, and the same is used by the railroad
company as a part of its line of railroad; that before said
railroad was constructed on said street, said street had been
improved by grading and graveling, according to the general
plan of street improvement in said city; that said railroad
was located on said street, and said railroad grade
established, and said street cut down and excavated by the
Anderson, Lebanon & St. Louis Railroad
Company, the first owners of said railroad property; that
said railroad company was allowed and permitted by the town,
now city, of Lebanon, and the owners of property abutting on
said street, so to locate said railroad tracks and make said
grade and cut down and excavate said street, upon the express
agreement and consideration that said railroad company
should, and would, regrade and gravel said street, and place
the same in good condition and keep the same in good repair;
that the track was constructed by the Midland Railway
Company, a subsequent owner, which company also agreed to
carry out the contract of the first owner; that the appellee,
the Chicago & Southeastern Railway Company, one of the
appellees herein, is now the owner of said railroad property,
and that it assumed all the agreements, liabilities, debts,
and legal obligations of said former railroad companies, and
thereby assumed and agreed to improve said street by
regarding and graveling the same according to the general
plans for street improvement in said city; that said railroad
companies have each and all failed and neglected to improve
and repair said street; that the common council of the city
of Lebanon, over the remonstrance of more than two-thirds of
the property owners abutting on said street, without
authority of law, entered into a pretended agreement with the
Chicago & Southeastern Railway Company for the
improvement of said street at the cost and expense of the
property owners and city, releasing said railroad company
from its obligations to improve said street and keep the same
in repair at its own cost; that to carry into effect said
agreement the common council of said city, on the 26th day of
April, 1897, without any petition, passed a resolution for
the partial improvement of said street, assuming to proceed
under an act of the General Assembly of March 8, 1889, by
paving with brick a strip thirteen feet wide on each side of
the space occupied by the railroad track; also by
constructing cement sidewalks on each side of said street,
five feet in width, for the full length of the improvement;
the property abutting on said street to be
assessed for said improvement, except part occupied by street
and alley crossings, the cost of which was to be paid by the
city. That afterwards on the 14th day of June, 1897, to
further carry out said agreement with said railroad company
for the improvement of said street, the common council passed
an ordinance for the improvement of said street in accordance
with said resolution; that at the time of passing said
special ordinance the common council and the railroad company
entered into a pretended contract which provided that, in
consideration that the city of Lebanon pave said street with
brick on each side of the railroad track to a width not less
than thirteen feet, and otherwise improve said street, and
bind the contractor doing the improvement of said street and
sidewalk to ship all material for the improvement over said
railroad, provided rates were equal (the railroad to furnish
the gravel, and transport it to a suitable point to unload on
said street, at sixty cents per cubic yard), and pay said
railroad company ten cents per cubic yard for loading the
same. The railroad company was to improve said street by
placing under its tracks new ties, good gravel under the
same, and plank on inside and outside of its rails throughout
the entire length of said street,
and otherwise improve between its tracks by filling in with
gravel and tamping same. This contract was executed June 4,
1897. That, in pursuance to said resolution and special
ordinance and agreement with the railroad company, said city
gave notice to contractors to let the improvement of the
street on the 12th day of July, 1897, at 7:30 o'clock, p.
m. That to improve said street according to the plans and
specifications, the city will incur a debt on account of
street and alley crossings of about $ 1,500 which, it is
alleged, is in violation of the Constitution of this
State." After setting out the value of the taxable
property within said city, and the amount of the
indebtedness, it is averred "that the indebtedness of
said city exceeds two per centum of all the taxable property,
and that the taxes and income of said year
have already been anticipated; that the city cannot pay cash
for said improvement, for it has not and will not have the
money; that said improvement will not increase the value of
the property on said street to the amount of the assessment
to pay for such improvement; that said proposed improvement
is not in accordance with the general plan of improvement in
said city, and is not and will not be of public
utility."
On the
17th day of July, 1897, the appellant filed a supplemental
complaint. It is shown in this complaint that since the
filing of the original complaint the common council of the
city of Lebanon, in pursuance to special ordinance and
notice, as in said complaint alleged, let the contract for
the improvement of said street to C. G. Wills & Co.,
composed of Charles G. Wills, William A. Gray, and Thomas W.
Huckstep, alleging that said Huckstep and one David M. Burnes
are partners, and work and have an office together in the
business of civil engineering; that Huckstep is a son-in-law
of Burnes; that as such civil engineers they are in the
employ of said city as the deputies of one Enoch James; that
Huckstep and Burnes made the plans and specifications for the
improvement of said street; that Burnes is to superintend the
work, make the estimates and accept the same upon the part of
the city. After stating the cost of the improvement, it is
alleged that the bid and contract price for making said
improvement is far in excess of the cost and expense of
making the same; that said C. G. Wills & Co., have not
commenced to construct said improvement but are about to
enter upon said work, and that they are necessary parties;
then follows the prayer for relief.
On
September 14, 1897, the appellant, Samuel L. Cason, filed his
additional supplemental complaint, setting up additional
facts relating to the matters in controversy, to some extent
restating matters contained in the complaint and first
supplemental complaint, and charging that the work was not
being done according to the contract, and that the materials
being used were not in accordance with the
contract; that the contractors were employing unskilled
workmen, and the work was being prosecuted in violation of
the contract, over the protest and objections of the abutting
property owners. A copy of the contract is made a part of
this additional supplemental complaint.
The
first reason urged for the sufficiency of the complaint is as
follows: "That there necessarily must be some limitation
to the authority of the common council of a city in making
public improvements."
It is
settled law in this State that the municipal corporations
have exclusive, original jurisdiction over the streets and
alleys within their limits, and the whole matter of the
improvement of the same and the assessments to be made in aid
thereof. Barber Asphalt, etc., Co. v
Edgerton, 125 Ind. 455, 25 N.E. 436; Keith
v. Wilson, 145 Ind. 149, 44 N.E. 13; §§
3161, 3367 R. S. 1881 and Horner 1897, ...
