Hamer v. City of Huntington
| Decision Date | 15 June 1939 |
| Docket Number | 27186. |
| Citation | 21 N.E.2d 407,215 Ind. 594 |
| Parties | HAMER v. CITY OF HUNTINGTON et al. |
| Court | Indiana Supreme Court |
Appeal from Huntington Circuit Court; Otto H. Krieg, Judge.
William D. Hamer, of Huntington, for appellant.
Garl Bonewitz, of Huntington, Lesh, Lesh & Lesh, of Indianapolis, and Mart J. O'Malley, of Huntington, for appellees.
This was an action brought by a taxpayer of the City of Huntington to enjoin the appellee, City of Huntington, and its officers acting for and on behalf of said city, from paying to the appellee, American-LaFrance & Foamite Industries, Inc. the amount of a certain claim filed by said company against said city for the purchase price of a certain fire engine and equipment sold by said company to said city, and the complaint also asked that the purchase of the bonds, issued by said city to procure funds for the payment of said claim and said bonds be declared illegal and void.
The court found the facts specially, stated his conclusions of law thereon and entered judgment against the appellant in accordance with such conclusions of law. This appeal is based on alleged errors in the court's conclusions of law.
The facts essential to the determination of this case are as follows: On September 8, 1936, at a regular meeting of the common council of the City of Huntington an ordinance was introduced authorizing the purchase by the Board of Public Works and Safety of said city of a fire truck and equipment for the fire department. On December 8, 1936, said ordinance was duly passed by the council. This ordinance provided that 'the expenses necessary for the purchase of said combination fire truck including the necessary equipment therefor, be raised by taxes levied or bonds issued and sold according to law which levy and issued of bonds is hereby authorized by this council.'
Pursuant to such authority the Board of Public Works and Safety of said city advertised for bids for said fire truck and equipment and, on December 31, said board accepted the bid of said appellee American-LaFrance & Foamite Industries, Ind., for the sum of $12,681.50. On the same day the officials of said city entered into a written contract with said company for the purchase of said fire equipment. The contract provided that the company agreed to sell and deliver said equipment to said city, and said city agreed to purchase and pay for the equipment within thirty days from the date of the invoice thereof. The contract further provided that said equipment should remain the property of said company until it was fully paid for; that the contract was taken subject to the written acceptance of an officer of the company and that, if requested by the company, the city should furnish to the company a satisfactory opinion of the city or town attorney as to the power of the municipality to make the contract. On January 18, 1937, the city received the written approval of said contract executed by an officer of the company pursuant to the terms of said contract. At the time said contract was entered into there was no appropriated fund from which the purchase price of said equipment could be paid.
On April 26, 1937, the common council of said city passed an ordinance appropriating the proceeds from the sale of bonds of the face value of $12,500 for 'the purpose of purchasing one combination fire truck together with necessary equipment, hose and ladders therefor, and purchase a service car for the chief of the fire department of the City of Huntington.' On May 4, 1937, the fire truck and equipment purchased by said city under said contract of December 31, 1936, was delivered to said city. On May 24, 1937, the State Board of Tax Commissioners of the State of Indiana approved the above described additional appropriation 'for the purchase of a combination fire truck together with necessary equipment.'
On July 12, 1937, the said company filed a claim with said city for the contract price of said truck and equipment. On October 30, 1937, said Board of Public Works and Safety of said city allowed said claim in the sum of $12,047.42 and made a formal acceptance of said fire truck which had been delivered to the city on May 4. On the same day the appellee, Wallace Reed, city clerk-treasurer of Huntington, Indiana, drew a warrant for the sum of $12,047.42, payable to the said company, and placed said warrant in the mail addressed to said company at Elmira, New York. Thereafter, on the request of said Reed, the Postmaster of Elmira, New York, returned said warrant to said Reed who is still holding the same. The appellee, American-LaFrance & Foamite Industries, Inc., relied on its contract with the appellee, City of Huntington, and manufactured said fire truck and equipment therefor according to the specifications adopted by said city and delivered said truck and equipment to said city.
On January 12, 1937, the common council of said city, in regular session, adopted an ordinance authorizing the borrowing of $12,500 and the sale of bonds therefor 'for the purpose of purchasing a combination fire truck, including hose, ladders and necessary equipment therefor, and necessary service car for use of the chief of fire department.' Said ordinance provided that said bonds should be issued so that designated bonds should become due at different dates from June 1, 1938, to June 1, 1944, and prescribed the form of the bonds, which form contained the provision 'That the privilege is hereby reserved to said City of Huntington to redeem this bond at any time after the 1st. day of June, 1938, and if so redeemed, interest shall cease thereon from the date of redemption.' Said ordinance also provided that said bonds should be sold on sealed bids to the highest bidder, for cash, and that three weeks notice of said sale should be given by three insertions, one each week, in the Huntington News and Herald-Press of the City of Huntington.
On January 15, and January 22, 1937, notice was given to the taxpayers, according to law, of the intention of the city to issue said bonds and no remonstrance to the issuance thereof was filed. Thereafter, beginning with January 26, notice of the sale of said bonds to be held on the 1st day of March, 1937, was given pursuant to the terms of said ordinance, and on March 9, the appellee Wallace Reed, city clerktreasurer of said city, reported to the common council that the successful bidder for said bonds had, on the advice of attorneys, refused to accept said bonds because the advertisement for the sale thereof had failed to state the provision for the redemption of such bonds. Thereupon said council on the same day adopted an ordinance providing that the ordinance authorizing the issuance of said bonds be amended by striking therefrom the provision providing for the redemption of said bonds.
On May 27, 1937, said common council adopted a resolution authorizing and directing a readvertisement for the sale of said bonds. Notice was given in two newspapers of said city, on May 28, and June 4, for the sale of said bonds to be held on June 7, 1937. On July 13, the city clerktreasurer reported to said common council that the successful bidder for said bonds refused to take them and that, therefore, he was unable to complete the sale. Thereafter, on October 12, the common council of said city adopted a resolution to again give notice of the sale of said bonds by publication in the two newspapers of said city and such notice was given on October 13, 1937, for sale to be held on October 15, 1937.
On the date set for said sale the Board of Public Works and Safety of said city authorized the superintendent of the Water Works Utility of said city to submit a bid for the purchase of said bonds and to invest Water Works Depreciation Funds of the Huntington Water Works Utility in said bonds. Pursuant to this authorization the said superintendent filed a bid of $13,256 for said bonds which bid was accepted by said clerk-treasurer. On October 30, 1937, said city clerk-treasurer delivered said bonds to the said Huntington Water Works Utility and transferred Water Works Depreciation Funds of said Utility in the sum of $13,256 to the Fire Truck Equipment Fund of said city.
The court further found that the appellant, William D. Hamer, is now, and has been since September 8, 1936, a taxpayer of said city and that...
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