City of Indianapolis v. Imberry
| Decision Date | 30 November 1861 |
| Citation | 17 Ind. 175 |
| Parties | The City of Indianapolis v. Imberry |
| Court | Indiana Supreme Court |
APPEAL from the Marion Common Pleas.
The judgment is affirmed, with costs.
B. K Elliott, for the appellant.
N. B Taylor, J. Morrison and C. A. Ray, for the appellee.
A transcript from the records of the city council of Indianapolis, shows the following facts to have occurred in 1859: On February 26, the council ordered advertisements for bids, for specified street improvements. On March 12, the civil engineer of the city reported to the council, the following, among other bids, for such improvements, viz., "For grading and graveling Pennsylvania street, and side walks between Pogue's run and Madison avenue with coarse pit gravel, per yard. W. & R. Johnson, grading, 15, graveling, 80; John Kelleher, grading, 13 1/3, graveling, 62 1/2. The contract was first awarded to Kelleher; but he proving irresponsible, the contract was subsequently given to the Johnsons. The Johnsons executed the required contract, and gave an approved bond, &c. The contract specified the width of the street, side walks, &c., and the thickness of the coat of gravel. It stipulated that the work was to be performed to the satisfaction of the civil engineer of the city, by October 1, 1859. The contract was signed by James Wood, civil engineer, for the common council of the city of Indianapolis, and was subsequently approved by the council.
In April, 1860, the council, by resolution, directed the civil engineer to make for the contractors, Johnson, a final estimate of the work specified in the contract. In May, the Messrs. Johnson filed, in the proper office, an affidavit, stating that on April 16, James Wood, the civil engineer, allowed and made out to them a final estimate, for the work mentioned in the contract above referred to, and that the estimate showed the sum of twenty-nine dollars and twenty-five cents as due from August Imberry, for a certain number of feet owned by him on said Pennsylvania street, specifying the number and the parts of lots, &c., which they formed, all of which sum remained unpaid, and that the improvement had been completed according to contract, &c. Upon this affidavit, the council ordered (the affidavit being made a part of the order,) that there should be a precept issued for the collection of the sum of money named, which precept was issued by the proper officer; whereupon Imberry appealed to the Common Pleas. In that Court, a demurrer was sustained to the transcript, as a cause of action, and final judgment rendered for the defendant.
Was the ruling upon the demurrer correct?
As there are no averment of unrecorded acts of the council, this question must be answered by comparing the acts shown by the transcripts to have been performed, with the requirements in the charter, and the by-laws of the corporation, touching this subject.
By the charter, the council has jurisdiction over the streets and alleys of the city, with power to provide for their improvement and repair. It has power to order them graded and graveled, or paved. It may do this: 1. Upon the petition of freeholders, according to § 66 of the charter, by a majority vote. 2. By a two-thirds vote of the council without a petition, according to § 68 of the charter. It does not appear, nor is it necessary that it should, in this case, whether there was a petition or not. The manner in which the order or determination of the council that a given street or alley, or part thereof, shall be improved, is to be expressed, is not pointed out in the paramount law, but we think it need not be by ordinance. We think it may be expressed by motion or resolution. It is urged that the latter part of § 68, renders it necessary that the council, in all cases, shall enter of record their determination whether the improvement contracted for shall be paid for by the property holders, or out of the general fund of the city, in order to render the contract in the case valid. But we do not think so. The charter authorizes the city council to let out the improvement of streets by contract, containing certain conditions, (the fund out of which payment is to be made not being one of them,) and it then declares the legal rights of the contractor, under such a contract, and the manner in which he may enforce payment for work done; and it declares that no question of fact shall be raised in such proceedings, behind the contract itself. But if the city should determine to pay out of the general fund, it would be necessary...
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Adams v. City of Shelbyville
...and again approved in 1881, § 3163 R. S. 1881. The right to enforce such assessments was recognized by this court in 1861, Indianapolis v. Imberry, 17 Ind. 175, in many subsequent decisions. The constitutionality of such legislation was never called in question until 1868, when it was assai......
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Voris v. Pittsburg Plate Glass Co.
... ... the owner of back-lying real estate within 150 feet of a ... street in the city of Kokomo, improved in 1893, under the ... Barrett law, to enforce the lien of an assessment for ... City of ... Jeffersonville (1883), 90 Ind. 567; City of ... Indianapolis v. Imberry (1861), 17 Ind. 175; ... Flournoy v. City of Jeffersonville (1861), ... 17 Ind. 169, ... ...
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Adams v. City of Shelbyville
...1881 (Rev. St. 1881, § 3163). The right to enforce such assessments was recognized by this court in 1861. City of Indianapolis v. Imberry, 17 Ind. 175, and in many subsequent decisions. The constitutionality of such legislation was never called in question until 1868, when it was assailed o......
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Voris v. Pittsburg Plate Glass Co.
...not overrule any of the following cases decided by this court: Ray v. City of Jeffersonville, 90 Ind. 567;City of Indianapolis v. Imberry, 17 Ind. 175;Flournoy v. City of Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468;Palmer v. Stumph, 29 Ind. 329;City of New Albany v. Cook, 29 Ind. 220;Snyde......