City of Logansport v. Jordan

• Decision Date: 29 October 1908
• Docket Number: No. 21,022.,21,022.
• Citation: 171 Ind. 121,85 N.E. 959
• Parties: CITY OF LOGANSPORT et al. v. JORDAN.
• Court: Indiana Supreme Court

171 Ind. 121

85 N.E. 959

CITY OF LOGANSPORT et al.

v.JORDAN.

No. 21,022.

Supreme Court of Indiana.

Oct. 29, 1908.

Appeal from Circuit Court, Cass County; J. West, Judge

Action by Michael A. Jordan against the city of Logansport and others. Judgment for plaintiff, and defendants appeal. Affirmed.

G. W. Funk, Lairy & Mahoney, D. B. McConnell, G. C. Taber, McConnell, Jenkines, Jenkines & Stuart, and Myers & Yarlott, for appellants. Geo. W. Walters, B. F. Long, W. H. H. Miller, C. C. Shirley, and S. D. Miller, for appellee.

JORDAN, J.

This action was instituted on October 1, 1906, by appellee, a resident taxpayer of the city of Logansport, to enjoin that city from incurring and paying any indebtedness in its corporate entity, in violation of the provisions of article 13 of the state's Constitution, which provides: “No political or municipal corporation in this state shall ever become indebted, in any manner or for any purpose, to an amount, in the aggregate exceeding two per centum on the value of the taxable property within such corporation, to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebtedness; and all bonds or obligations, in excess of such amount, given by such corporation, shall be void: Provided,” etc. Members of the city's common council and others of its officials, together with certain other persons, were made codefendants. The indebtedness in controversy, as claimed, arises out of the construction of a certain sewer by the city of Logansport. On a trial before the court on the issues as joined, there was a finding in favor of plaintiff (appellee herein), and, over the separate motions for a new trial by the several defendants, the court rendered its judgment and decree perpetually enjoining the city of Logansport “from making any appropriation of money or funds from the treasury of said city for the payment of any part of the cost of constructing the Herring system of sewerage on the West Side of said city of Logansport, constructed by the defendant Uhl under contract with said city.” The decree further provided that the “defendants are each and all perpetually restrained, enjoined, and prohibited from levying any tax upon the property in said city, to be collected or used for the purpose of paying any part of said cost of such sewer system, and from in any manner providing for the payment of the cost of said sewer system in said city,” etc. From this judgment, the city and the other defendants prosecute this appeal, and have jointly and severally assigned errors.

A condensed statement of the facts appears to be as follows: For many years the city of Logansport had experienced trouble in taking care of the stormwater from its streets and alleys in that part of the city known as the “West Side.” At various points it overflowed private property after every heavy rain, and did much damage. There was no sewer system in this part of the city. This condition of affairs apparently was controlling in causing the city council on March 1, 1905, to pass a declaratory resolution for the construction of a sewerage system to drain this part of the city. On September 5, 1903, an owner of property on the West Side filed suit against the city for damages resulting from stormwater from the streets and alleys being discharged upon his property, and for an injunction against the further continuance thereof. Trial in the case was had and a special finding of facts was made, with conclusions of law thereon, and filed by the court on March 8, 1905. This was eight days after the declaratory resolution ordering the construction of the sewer system was passed by the city council. On March 9, 1905, the court rendered its decree, granting plaintiff $100 damages, and perpetually enjoining the city from permitting the water from its streets and alleys to accumulate and overflow on plaintiff's property, and mandating the city to remedy the situation complained of by making alterations and improvements in certain streets and gutters. While this case was pending, but before any finding had been made, the city council passed a resolution, as hereinbefore stated, declaring the existence of a necessity for the construction of a sewerage system on the West Side of the city, and providing for the construction of such sewerage system, and adopting detailed plans and specifications therefor, which action was taken and the sewer to be constructed under the provisions of an act of the general assembly of the state of Indiana, approved March 11, 1901 (Laws 1901, p. 401, c. 179). Bids were advertised for and received April 5, 1905, and were opened on April 7, 1905, and on April 11th, the contract was let to appellant Dennis Uhl, and a contract entered into between him and the city.

The sewer system, as ordered, appears to have been intended, not only for the benefit of property owners, but also for the general benefit of the city of Logansport, by furnishing an outlet for the stormwater from the streets and alleys of the city, and because of this fact it was constructed much larger than it would have been if the system had been only for sanitary purposes, for the benefit of private property. The work of constructing the sewer system under the contract was done under the supervision of the board of public works of the city, and was completed on or before February 19, 1906, and was found to cost under the contract the sum of $173,574.39, and on this latter date was accepted and received by the city as completed. Soon thereafter the common council referred the matter of making assessments for the payment of the cost of the sewer to the board of public works under the provisions of the act of March 11, 1901, and on June 16, 1906, this board filed its report with the clerk of the city showing all its proceedings and setting out the assessments it had made, which showed that the aggregate assessments against private property, representing the total special benefits, was $121,195.96, and the balance of $52,378.43 was assessed against and charged to the city of Logansport. This report was received by the council on July 3, 1906. On August 1, 1906, the common council, by resolution duly adopted, and after a hearing extended to property owners, modified the assessments as made and reported by the board of public works by reducing all assessments against private property 12 1/2 per cent., and added the reduction to the amount assessed against the city, and confirmed the assessments as so modified. By this resolution the total special assessments on private property were fixed at $106,083.30, and the balance of $67,491.09 was assessed and charged against the city as its portion of the benefits derived from the sewer. By this resolution the council further provided that this $67,491.09 should be paid in 10 equal annual installments, and that a special tax levy should be made each year for that purpose. Soon after this assessment was made against the city, a property owner and taxpayer of the city filed suit against the appellants in this appeal, praying that the city be restrained and enjoined from paying or providing for the payment of any part of the assessment against the city on the ground that the city was already indebted far beyond 2 per cent. of its taxable property, and had no cash on hand with which to pay any part of the assessment. Hearing was had before the court, and a temporary injunction granted as prayed. Soon after this, the defendants in the latter suit moved the court to modify this injunction by confining it strictly to the assessments made by the city council on August 1, 1906. Subsequently, in September, 1906, for the purpose of securing a new assessment, contractor Uhl, one of the appellants in this case as relator, filed an action in the Cass circuit court against the city of Logansport and its board of public works, praying that they be mandated to make a new assessment for the payment of the contract price of said sewer system in accordance with the provisions of “An act concerning municipal corporations,” approved March 6, 1905 (Laws 1905, p. 219, c. 129); it being the theory of the plaintiff that the former assessments had been made under a wrong statute. The result of this suit was that a peremptory writ of mandate was issued by the court, directing the board of public works to proceed at once to make a new assessment under the act of 1905. In pursuance of this mandate of the court, the city's board of public works immediately convened, and by resolution voted to begin at once the work of making new assessments, and at the time of the commencement of the suit at bar they were engaged in making such assessment. On October 1, 1906, before the commencement of this action, the board of public works had proceeded so far in making these assessments that it had determined approximately what the assessment against the city would be. On that day the board addressed an official communication to the city controller, announcing therein that the benefits accruing to the city from the sewer system in question were “largely in excess of $15,000,” and asking for an appropriation “for the use of our department in that amount to pay the same.” In pursuance of this communication and request, the controller, with the assistance of the city's attorney, proceeded to prepare his recommendation to the mayor, therein advising the appropriation of $15,000 for the payment of part of the city's benefit derived from the sewer, and the making of a special levy of 17 cents on each $100 by which to raise the amount. These steps appear to have been taken on the evening of October 1, 1906, at which time members of the common council and the mayor of the city were waiting in the office of the city attorney to have prepared the proper ordinances making the appropriation and tax levy suggested. The attorneys for appellant Uhl, the contractor, were in consultation with the board of...