Hester v. Town of Greenwood

• Decision Date: 25 May 1909
• Docket Number: No. 21,249.,21,249.
• Citation: 88 N.E. 498,172 Ind. 279
• Parties: HESTER et al. v. TOWN OF GREENWOOD et al.
• Court: Indiana Supreme Court

172 Ind. 279

88 N.E. 498

HESTER et al.

v.TOWN OF GREENWOOD et al.

No. 21,249.

Supreme Court of Indiana.

May 25, 1909.

Appeal from Circuit Court, Johnson County; W. W. Thornton, Special Judge.

Action by Lindley G. Hester and others against the Town of Greenwood and others. Judgment for defendants, and complainants appeal. Affirmed.

W. J. Buckingham, for appellants. E. A. McAlpin, for appellees.

MONTGOMERY, C. J.

Appellants brought this suit to have certain franchise ordinances decreed null and void, and to enjoin the carrying out of their provisions and the levying of taxes for such purposes. The complaint was held insufficient upon demurrer, and, appellants declining to amend, final judgment was rendered in favor of appellees. The sustaining of appellees' demurrers have been properly assigned as errors.

The complaint alleged, in substance, that appellants are resident taxpayers of the incorporated town of Greenwood, and that on the 4th day of September, 1905, the board of trustees of said town duly adopted an ordinance, No. 92, granting to James A. Craig and John W. Henderson for a term of 50 years the right and privilege of erecting poles, wires, and appliances in the streets, alleys, and public grounds of the town for the purpose of furnishing electric light and power to said town and its inhabitants, and also passed and adopted an ordinance, No. 93, granting to the same parties for a like term, the right and authority to construct, operate, and maintain a system of water works in said town for the purpose of supplying the town and its inhabitants with water. It appears from said ordinances which are copied in full in the body of the complaint that provision was made to secure both public and private interests against any loss or damage resulting from the construction and operation of light or water plants, and a maximum rate or price was prescribed for which the town and private patrons could procure specified lights and lighting service, and a supply of water for fire hydrants and for various private uses, and the grantees were required within 20 days from the passage of the ordinance to file with the town clerk written acceptances of their provisions. It is further alleged that on September 13, 1905, the grantees Craig and Henderson duly filed in the office of the clerk their written acceptances of the provisions of said ordinances, and on September 27, 1905, said grantees filed in the office of the clerk an assignment in writing, whereby they assigned and transferred all their right, title, and interestin and to said franchises and ordinances to appellee the Citizens' Water & Light Company; that on March 4, 1907, said board of trustees passed Ordinance No. 100, contracting with said water and light company for certain electric street lights for the term of 20 years, and for certain fire hydrants for the term of 25 years, and providing for the collection of taxes for the purpose of paying the stipulated light and water rentals, which ordinance was duly accepted by appellee company. It was specifically charged (1) that the board of town trustees had no power or authority to grant franchises for the purposes named for a term exceeding 25 years, and that the ordinances purporting to grant such franchises for 50 years are ultra vires and void; (2) that said board neglected and failed to incorporate in said franchise ordinances the terms, price, and conditions upon which water and light should be furnished, and that at the time of their enactment the town had no contract containing any such terms, prices, and conditions, and that the ordinances are on this account illegal and void.

This is a vacation appeal, and Thomas C. Wilkerson, a member of the board of trustees, and George W. Carpenter, town clerk, who were joined as defendants in the court below, have not been joined as appellees in this court. Appellees make the point that, as Wilkerson and Carpenter were parties to the judgment from which the appeal is prosecuted, they should have been joined as appellees here, and the omission of their names is fatal to the jurisdiction of this court. This suit was directed essentially against the incorporated town and the Citizens' Water & Light Company, and the other persons named as parties were joined only because of their official position and in their official capacity. The judgment inured wholly to the benefit of the contracting parties, which were the town and the water and light company, and the officials had no personal interest in the subject-matter in litigation, and were not necessary parties to the suit. Appellants might have dismissed their action as to any of the officials named as defendants at any stage of the proceedings in the trial court, and may exercise a like privilege upon appeal, without affecting the jurisdiction of the court over the alleged cause of action and the necessary parties thereto. It is manifest that all the parties really interested in the subject-matter involved have been joined and are before us, and in our opinion Wilkerson and Carpenter are not necessary parties to this appeal. Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. 415, 27 Sup. Ct. 500;Schmeid v. Keeney, 72 Ind. 309;Jamison v. Cass County, 56 Ind. 466; 2 Ency. Pl. & Pr. 192. The franchise ordinances attacked were passed in pursuance of the authority conferred by section 253 of the act of 1905, “concerning municipal corporations” (Acts 1905, p. 219, c. 129; section 8938, Burns' Ann. St. 1908), which, omitting provisions relating to cities, reads as follows: “Any *** town may by contract, first entered into by *** the board of trustees, *** such contract to be duly approved by ordinance, as in other cases, grant to any person or corporation the right to lay down pipes, wires, or conduits; to construct sewers or drains; or to erect poles, wires, posts, masts, skelton towers and other necessary appliances and structures, in the streets, alleys and other public places of such *** town, and to maintain them there, for the purpose of supplying such *** town and its inhabitants with water for fire protection and domestic use, and with facilities for drainage and sewerage; or with water, steam,...