Meyer v. Town of Boonville

• Decision Date: 17 February 1904
• Docket Number: 20,173
• Citation: 70 N.E. 146,162 Ind. 165
• Parties: Meyer et al. v. Town of Boonville et al
• Court: Indiana Supreme Court

70 N.E. 146

162 Ind. 165

Meyer et al. v. Town of Boonville et al

No. 20,173

Supreme Court of Indiana

February 17, 1904

From Warrick Circuit Court; E. M. Swan, Judge.

Action by Louis J. Meyer and others against the town of Boonville and others. From a judgment for defendants, plaintiffs appeal.

Reversed.

Alexander Gilchrist, C. A. DeBruler and J. D. Wellman, for appellants.

Edward Gough and L. A. Folsom, for appellees.

OPINION

Monks, J.

Appellants who are resident taxpayers of the town of Boonville, brought this action against said town, the members of the board of trustees of said town, and the Boonville Electric Light &amp Power Company, to set aside two ordinances and the contract for lighting the streets of said town contained in one of said ordinances, and to restrain the carrying out of said ordinances and the exercise of any rights thereunder. The separate demurrer for want of facts of each defendant was sustained to the complaint, and, appellants refusing to plead further, judgment was rendered in favor of appellees. Each of said rulings is assigned for error.

The following facts, among others, are alleged in the complaint and admitted by the demurrers: In January, 1901, the board of trustees of the town of Boonville adopted two ordinances, by one of which a franchise for fifty years was granted to the Boonville Electric Light & Power Company, a domestic corporation, to use the streets, alleys, and public grounds of said town for the purpose of laying, maintaining, and operating mains, pipes, and conduits therein, and supplying "heat, power, light, refrigeration, and allied purposes" to said town and the inhabitants thereof; "said heat to consist of steam, gas, water, or any other mode of heating said company may see fit to use." The other ordinance granted the same corporation a franchise for ten years for using the streets, alleys, and public grounds of said town for the purpose of erecting thereon poles, posts, wires, or other necessary appliances "for the purpose of furnishing electric or other kinds of light, and necessary for the purpose of furnishing said town and its inhabitants with such light." By section five of the last-named ordinance the town of Boonville agreed to take a certain number of street lights for five years at a fixed price per annum, to be paid quarterly, with the right to take the same or an increased number of lights at the same price for an additional period of five years. Each ordinance declared that "whereas an emergency exists for the immediate taking effect of this ordinance, the same shall be in force whenever a written acceptance shall be filed with the clerk of said town by said company." The officers of the Boonville Electric Light & Power Company were present when said ordinances were passed, and immediately thereafter, in the presence of the board of trustees of said town, made and filed a written acceptance of the provisions of each of said ordinances. No publication or posting of either of said ordinances was ever made.

The granting by the board of trustees of a town or the common council of a city of a franchise to use the streets, alleys, and public places therein to erect poles and posts and to suspend wires thereon to furnish electric light to such town or city and its inhabitants, or to lay "pipes, mains, and conduits" to furnish gas, water, light, or heat to such town or city and the inhabitants thereof, is the exercise of a legislative power. Eichels v. Evansville St. R. Co., 78 Ind. 261, 263, 41 Am. Rep. 561; Wood v. Mears, 12 Ind. 515, 521, 74 Am. Dec. 222; Indianapolis, etc., R. Co. v. State, ex rel., 37 Ind. 489, 496, 497; Citizens' Gas, etc., Co. v. Town of Elwood, 114 Ind. 332, 16 N.E. 624; Grand Rapids, etc., Power Co. v. Grand Rapids, etc., Gas Co., 33 F. 659, 669; Des Moines Gas Co. v. City of Des Moines, 44 Iowa 505, 24 Am. Rep. 756; Elliott, Roads & Sts. (2d ed.), §§ 450, 455; Smith, Mun. Corp., § 1309; Dillon, Mun. Corp. (4th ed.), §§ 683, 691, 697, 698. But when the town or city enters into a contract with a second party, having such franchise, to light its streets and public grounds and buildings, or to heat its public buildings and offices by steam, hot water, or otherwise, or to furnish gas for that purpose, it exercises a business and not a legislative power. Town of Gosport v. Pritchard, 156 Ind. 400, 406, 59 N.E. 1058, and cases cited.

In 1899 the General Assembly passed an act entitled "An act vesting a right in the voters of any incorporated town in the State of Indiana, to, by a petition, refer any ordinance, agreement, contract, or measure enacted or proposed by the board of trustees of any incorporated town of this State to a vote of the voters of such town, and to reject the same by ballot," etc. Acts 1899, p. 216. The first section of said act (§ 4443r Burns 1901) provides "that no ordinance for the purchase or establishment of any water-works or lighting plant, or the granting of any franchise for the establishment or operation of any water-works, lighting plant, street railroad, telephone or telegraph company in any incorporated town in this State shall go into effect until thirty days after its passage, nor until voted upon at the polls, if within the said thirty days a referendum is demanded by forty per cent. of the legal voters of such incorporated town, as shown by the last preceding election." The other sections of the act make provision for the filing of said petition, its form, and the holding of an election. It is also provided that such ordinances shall not go into effect unless approved by a majority of the votes cast for and against the same.

Appellants insist that the ordinances in question come within the provisions of said act of 1899, and could not take effect until after the publication thereof, as required by the sixteenth subdivision of § 4357 Burns 1901, Acts 1879, p. 201; that by the express terms of said act of 1899, supra, all agreements, contracts, and measures for any of the purposes mentioned in said act of 1899 must be by an ordinance, which can not take effect until thirty days after its passage, and that, therefore, the emergency clause of said sixteenth subdivision could have no application thereto. The part of § 4357, supra, mentioned, reads as follows: "The board of trustees shall have the following powers: * * * Sixteenth. To make and establish such by-laws, ordinances, and regulations, not repugnant to the laws of this State, as may be necessary to carry into effect the provisions of this act, and to repeal, alter, or amend the same as they shall seem to require, but every by-law, ordinance or regulation, unless in a case of emergency, shall be published in a newspaper in such town, if one be printed therein, or posted in five public places, at least ten days before the same shall take effect."

Whatever may have been the manner in which incorporated towns were required to contract for the purchase or establishment of water-works or lighting plants, or to grant a franchise for the establishment or operation of any water-works, lighting plant, street railroad, telephone or telegraph line, before the taking effect of said act of 1899 (Acts 1899, p. 216, §§ 4443r-4443b1 Burns 1901), it is evident that since it took effect the same can only be done by an ordinance. It is clear, therefore, that the legislature intended that all the rules, regulations, and requirements in regard to the enactment and taking effect of ordinances should apply to such an ordinance, unless otherwise provided in said act of 1899. Said sixteenth subdivision of § 4357, supra, and section one of said act of 1899 (§ 4443r, supra) are in pari materia, and must be construed together. State v. Gerhardt, 145 Ind. 439, 460, 461, 44 N.E. 469, and authorities cited; Shea v. City of Muncie, 148 Ind. 14, 21, 46 N.E. 138, and cases cited; Black, Interp. of Laws, 206. As section one of said act of 1899 provides in express terms that such ordinance shall not "go into effect until thirty days after its passage," it is evident that the provision of the sixteenth subdivision of § 4357, supra, in regard to ordinances taking effect "in case of emergency" without publication, can have no application to ordinances coming within said act of 1899, supra. There is no provision, however, of said act of 1899 which in any way dispenses with or prevents the publication of the ordinances covered thereby, as required by said sixteenth subdivision of § 4357, supra.

To hold that said provision for publication in § 4357, supra, was dispensed with would in many cases defeat the very purpose for which said act of 1899 was enacted--that of referendum. Publication would advise the voters of the town of such ordinances, and give them an opportunity to obtain the benefit of said act; but, if no publication were made, they would in many, if not all, cases, have no knowledge of such ordinances until the thirty days within which a petition for referendum could be presented had expired. Construing said § 4443r, supra, and said sixteenth subdivision of § 4357, supra, together, as we are required to do (Shea v. City of Muncie, supra), it is clear that an ordinance, coming within said act of 1899, can only go into effect thirty days after its passage, when publication thereof has been made as required by said sixteenth subdivision of § 4357, supra, not less than ten days before the expiration of said thirty days. It is, therefore, the duty of the board of trustees, at once upon the passage of any ordinances coming within the provisions of said § 4443r, supra, to make publication thereof as required by said sixteenth subdivision of § 4357, supra.

What was said in Town of Gosport v. Pritchard, 156 Ind. 400, 406, 59 N.E. 1058, cited by appellees, in regard to ...