Municipal City of South Bend v. Blue Lines

• Decision Date: 13 January 1942
• Docket Number: 27604.
• Citation: 38 N.E.2d 573,219 Ind. 462
• Parties: MUNICIPAL CITY OF SOUTH BEND v. BLUE LINES, Inc.
• Court: Indiana Supreme Court

38 N.E.2d 573

219 Ind. 462

MUNICIPAL CITY OF SOUTH BEND v. BLUE LINES, Inc.

No. 27604.

Supreme Court of Indiana

January 13, 1942

Rehearing Denied Feb. 11, 1942.

See 39 N.E.2d 439.

Nathan Levy and Joseph A. Roper, Asst. City Atty., both of South Bend, for appellant.

Jones Obenchain & Butler, of South Bend, for appellee.

SHAKE Chief Justice.

The sole question presented by this appeal is whether the appellee is required to pick up and transport garbage in areas annexed to the city of South Bend subsequent to the effective date of a contract between the city and the appellee's assignor. The complaint was filed under the Declaratory Judgments Act (§ 3-1101, Burns' 1933, et seq., § 438, Baldwin's Ind.Statute 1934,) and the cause was submitted as an agreed case, pursuant to § 2-2201 to § 2-2203, Burns' 1933, Sections 362 to 364, Baldwin's Ind.Statute 1934. The trial court concluded that the appellee is not so obligated and rendered judgment to that effect. On this state of the record, there are no presumptions in favor of the action of the trial court, and it is our duty to consider the case as if we were trying it in the first instance. Day v. Day, 1884, 100 Ind. 460; Warrick Building & Loan Association v. Hougland, 1883, 90 Ind. 115.

The parties rely exclusively upon the preliminary proceedings on the part of the city; the contract; the annexation ordinances; and their agreement as to certain additional facts. These documents are too lengthy to be set out in full, but we shall state the substance of such parts of them as are pertinent to the inquiry.

The board of public works and safety of the city of South Bend adopted specifications as a basis for receiving bids and awarding a contract. The specifications provided that they should be incorporated in and made a part of the contract by reference; that the subject of the proposed contract would be the collection and removal of garbage, weekly or bi-weekly during certain months, from all apartments, residences, and private dwellings throughout the city of South Bend to a farm at least three miles beyond the city limits, where it would be fed to hogs; that the bidder should state the location of such farm in his bid, and that if this was changed the contract price might be adjusted by the parties, if they could agree, and, if not, then by arbitration; that each bidder should satisfy himself, by personal examination of the city, as to the nature and amount of work to be done and that he might not thereafter assert that there was any misunderstanding with respect thereto; that there should be submitted with each bid a map of the city divided into districts, and indicating the collection routes in each district, which should be subject to the correction and approval of the board of public works and safety; that the successful bidder should conform to all the laws of the United States and of the state of Indiana, to all present or future ordinances of the city of South Bend relating to the subject matter of the contract, and to all rules and regulations adopted by the city covering the collection and disposal of garbage, not inconsistent with the contract. The city reserved the right to build an incinerating plant or provide other means of garbage disposal, and, in such event, to cancel the contract on 12 months' notice.

The appellee's assignor was the successful bidder, and on August 18, 1939, the city entered into a contract with him, by the terms of which he obligated himself to collect and haul garbage in accordance with the above specifications for the period of 5 years, beginning on January 1, 1940, for an agreed consideration of $29,940 per year. On August 27, 1939, the contract was assigned to the appellee, with the consent of the common council of the city. By ordinances approved on March 12, 1940, March 25, 1941, and May 28, 1941, three additions were annexed to South Bend, and the controversy is whether the appellee is obligated, under its contract, to serve these territories.

The appellee contends, in support of the judgment in its favor, that the obligation assumed by it must be considered in the light of the conditions existing at the time the contract was entered into, and that to require the appellee to service the subsequently annexed additions would increase the burden of performance and impair the contract. Our attention is called to clause 13 of § 48-1407, Burns' 1933, § 11432, Baldwin's Ind.Statute 1934, by which municipalities are given jurisdiction over the collection and removal of garbage within four miles of the corporate limits, and the appellee says that had it been contemplated that the scope of the service might be extended beyond the city limits, as they existed when the contract was entered into, it is reasonable to assume that provision would have been made for such a contingency. It is also urged by the appellee that the provisions of the specifications and contract requiring compliance with future ordinances relate to the exercise of the city's police power, and have no application to annexation proceedings.

The appellant takes the position that the contract is not ambiguous; that the appellee assumed to serve the city of South Bend as a legal entity, rather than the territory within the corporate limits thereof; that it was...