Lowe v. McKnight, 25878.

• Decision Date: 20 January 1931
• Docket Number: No. 25878.,25878.
• Citation: 202 Ind. 565,174 N.E. 424
• Parties: LOWE et al. v. McKNIGHT et al.
• Court: Indiana Supreme Court

202 Ind. 565

174 N.E. 424

LOWE et al.

v.McKNIGHT et al.

No. 25878.

Supreme Court of Indiana.

Jan. 20, 1931.

Appeal from Fayette Circuit Court; G. Edwin Johnston, Judge.

Action by Ernest A. McKnight and others against Everett Lowe and others, as members of the Common Council of the City of Connersville, the Mayor of the City, and others. The Mayor and two members of the Council defaulted, and, from a judgment for plaintiffs, the remaining defendants appeal.

Reversed, with directions.E. Ralph Himelick, G. Andrew Golden, and Wiles, Springer & Roots, all of Connersville, for appellants.

Feemster & Feemster, of Cambridge City, and Adolph Zwerner, of Connersville, for appellees.

MARTIN, J.

The common council of the city of Connersville on May 7, 1923, passed Ordinances numbered 845 and 846 abolishing, respectively, the board of public works and the board of public safety of that city, and providing that a special committee, of three members, of the common council, to be appointed by the mayor, should exercise the powers and perform the duties of those boards. On December 2, 1929, the common council passed Ordinances numbered 970 and 971 which repealed Ordinances numbered 845 and 846, and on the same day passed Ordinances numbered 972 and 973, which provided that the board of public works and the board of public safety be abolished and that the power and duties of such boards be devolved upon and performed by the common council as a whole.

Section 10264, Burns' Ann. St. 1926, being section 1, c. 56, Acts 1923, which became effective April 30, 1923, seven days before the enactment of Ordinances 845 and 846 of the city of Connersville, and which was applicable thereto, contains a proviso, that:

“The common council of any city of the fourth class may, by ordinance duly passed, abolish the board of public works, and provide that the common council of such city shall perform the duties of the board of public works.

“Provided, further, That if the common council of any city of the fourth class shall not abolish the board of public works thereof, in the manner herein provided, such board shall be abolished whenever a majority of the electors of such city, voting on the question at any general city election, shall vote in favor of abolishing the same. ***

“In all cases where the board of public works is abolished, as herein provided, the common council of such city shall perform the duties of the board of public works; or the common council of such city may, by ordinance duly enacted, provide that a special committee of three members of such common council may act in the place of and perform the duties of the board of public works. ***

“Provided, further, that the common council of any city of the fourth class may, by ordinance duly passed, abolish the board of public safety, and provide that the duties prescribed by law to be performed by a board of public safety shall be performed by the common council, and in case a special committee of the common council is appointed to perform the duties of a board of public works, as hereinbefore provided, such special committee shall perform the duties prescribed by law to be performed by a board of public safety. ***”

The appellees, as taxpayers, instituted this action against the city of Connersville, its mayor, its common council, and the members thereof, alleging the facts set out above and that Ordinances 970, 971, 972, and 973 are null and void for the alleged reason that the power to enact them is not expressly granted by section 10264, Burns' Ann. St. 1926, and that therefore the city council had no power to enact them. The prayer was for an injunction to prevent the common council as a whole from acting as a board of public works and as a board of public safety. Two members of the council, who were members of the committee of three which had been performing the duties of the boards of public works and safety, and the mayor defaulted. A demurrer was filed by the remaining five members of the council, appellants herein, which was overruled. Answers in general denial were filed by all defendants, except those defaulted. A stipulation by the parties was agreed to as constituting all the evidence, and the court rendered judgment in favor of appellees declaring Ordinances 970, 971, 972, and 973 to be void and permanently enjoining the members of the common council of the city of Connersville from exercising or performing any of the powers, duties, or functions of a board of public works or a board of public safety in that city.¹

One of the errors relied upon for reversal is the overruling of appellant's demurrer to appellee's complaint, and, in the view we have taken of the case, this is the only error which will require consideration.

[1][2] The proviso of the statute above set out, which vests in the common council, or a majority of the electors, the right to abolish the boards of public works and safety, imposes...