City of Logansport v. Webster
| Decision Date | 10 March 1910 |
| Docket Number | 6,759 |
| Parties | CITY OF LOGANSPORT v. WEBSTER |
| Court | Indiana Appellate Court |
From Cass Circuit Court; John S. Lairy, Judge.
Appeal by Weldon Webster from an order of the City of Logansport for the improvement of an alley. From a judgment for said Webster, the City of Logansport appeals.
Reversed.
George W. Funk, for appellant.
Stewart T. McConnell, Albert G. Jenkines, Bertram C. Jenkines and Charles H. Stuart, for appellee.
This is an appeal from the final assessment of benefits to improve an alley in the city of Logansport, under the act of the legislature of 1901, known as the Artman law. Acts 1901, p 534, §§ 3623a-3623h Burns 1901.
The transcript of the proceedings of the common council, which forms the basis of the appeal, shows that on June 1, 1904 the common council of the city of Logansport, by more than a two-thirds vote, passed a declaratory resolution for the improvement of a certain alley in said city, and authorized the city clerk to advertise for bids to be received for said work up to 4 o'clock p. m., June 25. The clerk gave the prescribed notice, and on July 6, at a regular meeting of said council, the street committee of said council presented two bids for the work, together with their report thereon, as follows: "Your street committee, after opening and examining the bids for the improvement of the alley between Wright and Usher streets and Fifteenth and Sixteenth streets, would recommend that the contract for the improvement of said alley be awarded to Jerry Kerns, he being the lowest bidder, and we further recommend that the mayor and clerk enter into a contract, in accordance with the bid." The record then shows the adoption of the report, the acceptance of the bid of Jerry Kerns, and the execution of his contract for the construction of the improvement. The record also shows the completion of the work and its acceptance, and all further hearings, notices and proceedings, as required by said act to have been fully and legally had and performed. The final order of the common council, confirming and fixing the assessments, was made on November 21, 1904.
On December 21, 1904, appellee presented his bond for an appeal to the circuit court, which bond was approved. The record does not show that appellee took any steps towards taking an appeal until said December 21.
The appeal was sought to be taken under section five of said act (§ 3623e, supra). This section authorizes an appeal within twenty days from the final order fixing the assessments. It does not appear that the appeal was taken within that time, but no motion was made to dismiss the appeal below, and no question presented thereon here.
Upon the approval of the appeal bond the city clerk filed a transcript of the proceedings of the common council, as heretofore set out, in the office of the clerk of the Cass circuit court. Appellee demurred to the transcript for want of facts, which demurrer was sustained, and judgment was rendered against the appellant. In cases of this character the transcript of the proceedings of the common council is treated as in the nature of a complaint. Taber v. Ferguson (1887), 109 Ind. 227, 9 N.E. 723; Phillips v. Jollisaint (1893), 7 Ind.App. 458, 34 N.E. 653; Reeves v. Grottendick (1892), 131 Ind. 107, 30 N.E. 889. The only objection urged against the transcript is that it does not show that the bids were received within the time fixed in the notice, or that the council met at the time specified, to receive and open them. Section one of said act (§ 3623a, supra) provides that "the common council shall open the bids upon the date fixed and award the contract to the best bidder therefor: Provided, that such common council may take such bids under advisement and shall have the power to reject any and all bids."
In the very nature of things, the usual rules for the construction of complaints should not apply with strictness to cases like this. Here we have no one in interest filing a complaint. The real party whose interests are affected is the contractor and yet the defect, if defect it is, accrued before the contract was let to him, and before he had any interest. Furthermore, only the recorded acts of the council are presented. The law does not require that a record be made of the meeting of the council at the opening of the bids, and if, in fact, it did meet at the time specified, and open the bids, and took them under advisement until finally acted upon, and no bids were received after that date, the mere fact that they made no record of such acts would not invalidate their subsequent proceedings. Ross v. City of Madison (1848), 1 Ind. 281; School Town of Princeton v. Gebhart (1878), 61 Ind. 187; State, ex rel., v. Hauser (1878), 63 Ind. 155. In the case last cited the court said on page 182: ...
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