Miller v. Bowers

• Decision Date: 25 November 1902
• Citation: 30 Ind.App. 116,65 N.E. 559
• Parties: MILLER et al. v. BOWERS.
• Court: Indiana Appellate Court

30 Ind.App. 116

65 N.E. 559

MILLER et al.

v.BOWERS.

Appellate Court of Indiana, Division No. 1.

Nov. 25, 1902.

Appeal from circuit court, Adams' county; D. D. Heller, Judge.

Injunction by John S. Bowers against Calvin Miller and others. From a judgment overruling a demurrer to the complaint, defendants appeal. Affirmed.

Amos P. Beatty, Schaffer Peterson, and A. J. Lutz, for appellants. Dore Erwin and Richard Erwin, for appellee.

ROBINSON, J.

The board of county commissioners entered into a contract with certain contractors to build a macadam road. The contract provided that the road should be built wholly of blue limestone taken from certain quarries. It is averred in the complaint that, instead of building the road of blue limestone, the contractors are building and threatening to build the road of slate and shale, a material wholly and entirely worthless for the purpose of building macadam roads. Appellee, “a legal bona fide resident and taxpayer” of the township in which the road is located, and “interested in and assessed for the purpose of raising funds for the payment for the construction” of the road, sues to enjoin the contractors from placing on the road other and different material than blue limestone, and from using the slate and shale, and the board from making allowances to the contractors for such work. The only question presented is the sufficiency of the complaint. Appellant's argument is directed to two propositions,-that appellee has not legal capacity to sue, and that the complaint does not state sufficient facts. It is averred that appellee is a resident and taxpayer, and has been assessed for the purpose of raising funds for constructing the road. He had such an interest in the public funds as gave him a right to prevent their application to a wrongful purpose. Alexander v. Johnson, 144 Ind. 82, 41 N. E. 811;City of Lafayette v. Cox, 5 Ind. 38;Board v. Markle, 46 Ind. 96; Harvey v. Railroad Co., 32 Ind. 244;Town of Winamac v. Huddleston, 132 Ind. 217, 31 N. E. 561;Middleton v. Greeson, 106 Ind. 18, 5 N. E. 755. It is true that a person cannot be enjoined from violating a contract for personal services where such contract contains no negative stipulations. Schwier v. Zitike, 136 Ind. 310, 36 N. E. 30. In the case last cited it was held a suit would not lie to enjoin a school board from violating its contract with a person for his personal services as a teacher. That is to say, a contract cannot be enforced indirectly through an injunctionrestraining the party bound from repudiating the contract. Upon the same principle a municipality or an individual cannot enforce a municipal ordinance through an injunction to prevent its violation. Town of Rochester v. Walters, 27 Ind. App. 194, 60 N. E. 1101. It is true, in a sense appellee is seeking to prevent the violation of a contract; but he is not seeking, by this proceeding, to have the contract performed as made. The action is in reality to prevent the violation of the law for the protection of the public funds. As one who was bound to contribute to the public funds, he had a right to bring a suit for injunction against their misappropriation.

It is also argued that, as appellee had a complete remedy at law, injunction will not lie. It is true, it must be presumed that the board did its duty when the contract was let, and required of the contractors a bond. But a suit on the contractor's bond would not have been an adequate remedy. The bond secures nothing more than the terms of the contract on behalf of the contractor, and the measure of liability on the bond does not secure the taxpayer against an unauthorized expenditure of the public funds. Deweese v. Hutton, 144 Ind. 114, 43 N. E. 13. It cannot be said that the injury resulting from the construction of the road out of worthless material could be compensated in an action at law for damages. And it is not enough that there is simply a complete remedy at law. “If the remedy at law,” said the court in Watson v. Sutherland, 5 Wall. 74, 18 L. Ed. 580, “is sufficient, equity cannot give relief. But it is not enough that there is a remedy at law. It must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.” Boyce v. Grundy, 3 Pet. 210;7 L. Ed. 657;...