Cooper v. Town of Middletown

• Decision Date: 26 May 1914
• Docket Number: No. 8823.,8823.
• Citation: 56 Ind.App. 374,105 N.E. 393
• Parties: COOPER v. TOWN OF MIDDLETOWN et al.
• Court: Indiana Appellate Court

56 Ind.App. 374

105 N.E. 393

COOPER

v.TOWN OF MIDDLETOWN et al.

No. 8823.

Appellate Court of Indiana, Division No. 1.

May 26, 1914.

Appeal from Circuit Court, Henry County; Ed. Jackson, Judge.

Action by Anna D. Cooper against the Town of Middletown and another. From a judgment for defendants, plaintiff appeals. Reversed, with instructions.

Forkner & Forkner, of New Castle, for appellant. Barnard & Jeffrey, of New Castle, and J. A. Van Osdol, of Anderson, for appellees.

HOTTEL, J.

Appellant, as a citizen and taxpayer of the town of Middletown, Henry county, Ind., filed a complaint in the court below against said town and the Indiana Union Traction Company, appellees, to set aside and enjoin the carrying out of a contract made by said town with said traction company to furnish said town with electric current for the purpose of street lighting, and to compel, by mandatory injunction, the said town to proceed with the construction of an electric light plant under and pursuant to a resolution of the board of trustees approved by a majority vote of the citizens of said town at a public election held pursuant to said resolution.

To this complaint appellees each filed a separate demurrer on the grounds of insufficiency of facts. These demurrers were each sustained, and, appellant having refused to plead further, judgment was rendered against her and in favor of appellees for costs. These rulings are assigned as error and relied on for reversal.

The averments of the complaint necessary to an understanding of the questions presented by the appeal are, in substance, as follows: The board of trustees of said town passed the following resolution:

“Be it ordained by the board of trustees of the town of Middletown, Indiana, that the town build an electric light plant, and for that purpose issue bonds of said town for ten thousand dollars, not to exceed in cost twelve thousand dollars, and that the question of building said electric light plant be submitted to the voters of said town at an election to be held from six a. m. to six p. m. on the 23d day of July, 1910, in said town, due notice of such election to be given for twenty days by publication for two weeks, and each week by the Middeltown News. Said election shall be held at the following place in said town: In the vacant store of John P. Sanders, on the east side of South Fifth Street.”

Pursuant to this resolution notice was given and an election had, at which a majority of the voters of said town voted in favor of building an electric light plant, as provided in said resolution. The report of such election was made to said board, and after it was received and placed on file said board, by ordinance, authorized the issuing and sale of $10,000 of bonds of said town. These bonds were issued and sold, and the proceeds derived therefrom turned into the treasury of said town. Said town and its board of trustees failed, neglected, and refused, and are yet refusing, to carry out the provisions of said resolution, and build an electric light plant as provided therein, but are about to purchase and construct a large number of poles, wires, and equipment in and upon the streets of said town, at a cost of more than $10,000, without building, providing, or constructing any machinery, engines, buildings, dynamos, or other appliances necessary to be used in the operation of the same for lighting purposes, and, instead of building or constructing an electric light plant as authorized in said resolution, said town and its said board of trustees have entered into a contract with the Indiana Union Traction Company to purchase of said company the electric current necessary to supply said wires to be constructed as aforesaid for the purpose of lighting said town. Said town and said board of trustees are not intending and will not construct an electric light plant, and are acting in violation of the terms and conditions of said resolution, and wholly without the authority of law, in attempting to purchase electric current of said company, instead of constructing the plant authorized by said resolution and running and operating it as contemplated and provided in said resolution; that, unless enjoined, defendants will complete the erection of said poles and wires, and will attempt to carry out the alleged contract with said company to the great detriment of said town and the citizens and taxpayers thereof.

The resolution in question was based on section 8921, Burns 1908 (since amended, Acts 1911, pp. 561, 563), which, in so far as relevant to the question here involved, provides as follows:

“Any city or town may determine to erect *** electric light works, *** or to purchase or lease any such works already constructed or in course of construction and owned by any person, corporation or company, together with all the property, rights and privileges connected therewith, and may also purchase, or lease, other lands for like purposes; and such city or town is hereby authorized, for the purpose of procuring means for erecting, extendind, improving, purchasing or leasing any such works, and thus furnishing the inhabitants of such city or town *** with light, power or heat, to issue the bonds of such city or town. *** Provided, that *** the board of trustees of any town contemplating the building, extension, improving, purchasing or leasing of any such works, shall, before the approval of any such contract or resolution for such erection, purchase or lease, first submit the question to the qualified voters of such city or town, at a special or general election, of which election and the submission of such question thereat, notice shall be given for twenty days by publication. *** Voters desiring such works may vote *** ‘For Electric Light Works,’ *** or, if opposed, *** ‘Against Electric Light Works' *** and if a majority of the voters voting on such question at such election be in...