Corp. of Bluffton v. Studebaker

• Decision Date: 01 April 1886
• Citation: 106 Ind. 129,6 N.E. 1
• Parties: Corporation of Bluffton v. Studebaker and others.
• Court: Indiana Supreme Court

106 Ind. 129

6 N.E. 1

Corporation of Bluffton

v.Studebaker and others.

Supreme Court of Indiana.

April 1, 1886.

Appeal from Wells circuit court.

Daily & Mock, for appellant.

R. S. Taylor, for appellees.

Howk, J.

In this case each of the appellants demurred to the complaint of the appellees, the plaintiffs below, upon the ground that it did not state facts sufficient to constitute a cause of action. These demurrers were overruled by the court, and to this ruling the appellants excepted, and, having refused to plead further, it was adjudged and decreed by the court that they be perpetually enjoined, as prayed for in appellees' complaint. In this court the only errors assigned by appellants are such as call in question the sufficiency of the facts stated in appellees' complaint to constitute a cause of action. The suit was commenced on the sixth day of February, 1880. In their complaint, appellees, John Studebaker, George Arnold, Benjamin F. Wiley, and Henry O. Arnold, alleged that they, each and all, were citizens and taxpayers of the corporation of Bluffton, in Wells county, in this state, and largely interested in its welfare and prosperity; that such corporation of Bluffton was a municipal corporation, created under a special act of the legislature of this state, approved February 12, 1851, as amended by an act of the legislature of this state approved February 15, 1873, as found on page 31 et seq. of the acts of 1873; that appellant Smith was the mayor, and appellants Thomas, Tribolet, Shelley, and Deane were the councilmen, and appellant Miller was the clerk, and appellant Sturgis was the treasurer, of such corporation of Buffton; that such corporation, by its council, had ordered from the Consolidated Fire-extinguisher Company, of Pittsburgh, Pennsylvania, and Chicago, Illinois, and were about to purchase, two chemical engine fire-extinguishers, for the use of such corporation, without any authority or warrant in law; that, by such unlawful act of the council of the corporation of Bluffton, the taxpayers thereof were about to be involved in great expense, to-wit, in the sum of $1,600, that being the alleged price of such chemical engine fire-extinguishers; that the corporation of Bluffton had no authority, under its charter as amended, to purchase such an article for its use; and that the corporation, by its council and other officers, were about to issue orders, warrants, or bonds in payment for such chemical engine fire-extinguishers, unless they were at once restrained and enjoined from such unlawful proceeding. Wherefore, etc.

The town of Bluffton, in Wells county, was incorporated by and under a special act of the general assembly of this state. The act is entitled “An act to incorporate the town of Bluffton, in Wells county, Indiana,” was approved on the twelfth day of February, 1851, and, by its express terms, was “in force from and after its passage.” The act contained 15 sections. In section 1 it was enacted that the inhabitants of certain described territory in Wells county, and of all other additions to the town of Bluffton, after a proper plat of the same had been recorded in the recorder's office, “are hereby created a body corporate and politic by the name and style (for corporation purposes) of the corporation of Bluffton, and by that name shall be capable of suing and being sued, contracting and being contracted with, pleading and being impleaded, answering and being answered unto, in all courts and places, either in law or equity, and in all places whatsoever.” In section 8 of such act it was provided as follows:

“The council of the corporation of Bluffton shall have power to sink wells for the accommodation of the public, to purchase fire-engines, and to erect a scale or scales (if necessary) to determine the weight of hay, etc.; to prevent the erection of nuisances, and remove the same; to regulate and govern the markets; and generally to enforce by penalties the observance of all laws and ordinances relative to police, health, accommodation, and government of said incorporated town.”

Nearly nine months after the town of Bluffton was so incorporated under such special act or charter, to-wit, on the first day of November, 1851, the constitution of this state of 1851 took effect, and became, and, with some amendments not material to the questions in this case, has since continued to be, the organic or fundamental law of this state. Under this constitution, and since it took effect as aforesaid, the general assembly has had no power or authority to enact such a law as the above-entitled act for the incorporation of the town of Bluffton; for in section 13 of article 11 of the state constitution of 1851 it is expressly declared that “corporations, other than banking, shall not be created by special act, but may be formed under general laws.” But in the fourth clause of the schedule or ordinance which is embraced in and forms a part of the state constitution of 1851, it is ordained as follows: “All acts of incorporation for municipal purposes shall continue in force, under this constitution, until...