Quill v. City of Indianapolis

• Decision Date: 08 February 1890
• Docket Number: 15,360
• Parties: Quill v. The City of Indianapolis et al
• Court: Indiana Supreme Court

23 N.E. 788

124 Ind. 292

Quill v. The City of Indianapolis et al

No. 15,360

Supreme Court of Indiana

February 8, 1890

Petition for a Rehearing Overruled June 6, 1890.

From the Marion Circuit Court.

The judgment is affirmed, with costs.

A Zollars, C. S. Denny and W. F. Elliott, for appellant.

W. L Taylor, for appellees.

OPINION

Mitchell, C. J.

It is shown by the complaint, upon which all the questions in the present case arise, that the plaintiff, Thomas F. Quill, is a resident taxpayer of the city of Indianapolis, and the owner of a certain described lot in one of the additions to the city. It appears that the common council and board of aldermen, in August, 1889, assuming to proceed under the authority of the act of March 8th, 1889, entitled "An act concerning powers and duties of cities and incorporated towns, * * * providing the mode and manner of making street and alley improvements, and building sewers, * * and permitting cities and incorporated towns to issue street and sewer improvement bonds," passed an ordinance for the improvement of a certain designated street in the city on which a lot owned by the plaintiff abutted. The contract for the improvement was duly awarded to Robert Kennington, who completed the work accordingly, after which the city engineer made and reported his final estimate of the total cost of the improvement and apportioned the amount to the several lots and parcels of land bordering on the street, as required by section 817, Elliott's Supp., being section 6 of the above act. The report having been presumably adopted, and an assessment made by the proper authorities after due notice, it is averred that the contractor threatened to enforce payment of the amount assessed against the plaintiff's lot, and being unable to pay, it is alleged that the plaintiff, in order to prevent the sacrifice of his property, executed, under protest, a written agreement, in which he stipulated, in effect, that, in consideration of having the right to pay the amount assessed against his lot in instalments, he would make no objection to the legality or regularity of his assessment, etc.

It is also averred that in making the improvement the city incurred a debt of $ 97 for that portion thereof occupied by street and alley crossings, which it is alleged is in violation of the Constitution of the State, and that the corporation is about to issue bonds as provided in the act mentioned to cover the cost of the improvement. After setting out the amount or value of the taxable property within the city, and the present indebtedness, it is averred that the indebtedness already exceeds two per centum of the value of all the taxable property. It is also averred that while the property-owners were duly notified as provided in section 2 of the act, of the time and place where they might make objection to the necessity of the improvement, no committee was appointed to hear the objections, which, according to the direction of the common council, were required to be filed with the city clerk. It is contended that the giving of such a notice was not a compliance with the provisions of the act, because no committee was appointed to hear and determine the validity of the objections. It is also contended that the city has no power to issue the bonds provided for in the act, because its present indebtedness exceeds the limit fixed by article 13 of the Constitution of the State, and that so far as the act assumes to authorize the issuing of bonds without regard to the amount of the existing indebtedness it is unconstitutional.

Elliott's Supp., section 813, requires the common council, whenever it deems it necessary to make any of the improvements authorized by the act, to declare the necessity therefor by resolution, and also to state the kind, size, location, and terminal points thereof. Ten days' notice of the passage of the resolution is required to be given by two weeks' publication in some newspaper of general circulation; and it is also required that the notice thus published shall state the time and place where the property owners along the line of the proposed improvement can make objections to the necessity for the construction thereof. This statute contemplates the publication of notice for two successive weeks, ten days prior to the day fixed for making objections; that is, the first publication must have been made twenty-four days before the time therein fixed. The statute does not require or contemplate the appointment of a committee to hear the objections, or that there should be any determination of the rights of the objectors. It simply contemplates that no action shall be taken by the common council after resolving to make the improvement until notice is given, and an opportunity afforded the property owners to present, for the consideration of the council, such objections as they may make to the necessity for the construction of the work. It is designed to prevent the city authorities from entering inconsiderately upon the construction of expensive improvements, without affording the property owners, who are, in the end, to pay for them, the opportunity to present their objections at the outset, which are intended to be rather as advisory to the common council than otherwise. This purpose could be accomplished as well by requiring objections to be filed with the clerk, to be by him laid before the common council, as in any other way. The right of the property owners to appear before the common council for the purpose of urging the validity of any objections filed with the clerk is in no way abridged or impaired. The right to a hearing is secured to each property-owner by another provision of the act. We discover no valid objection to the notice.

It is conceded that the present bonded indebtedness of the city exceeds the limit fixed by the Constitution, but it is contended that the cost of improving the street and alley crossings, payable by the city, must and will be paid in cash, and that the bonds authorized by the act in question are merely improvement bonds, for the payment of which the city is not liable, and that they are, hence, not an indebtedness of the city within the contemplation of the Constitution. So much of article 13, of the State Constitution, as is germane to the subject under examination, declares that "No political or municipal corporation in this State shall ever become indebted, in any manner or for any purpose, to an amount in the aggregate exceeding two per centum on the value of the taxable property within such corporation, to be ascertained by the last assessment for State and county taxes previous to the incurring of such indebtedness; and all bonds or obligations, in excess of such amount, given by such corporation, shall be void."

It becomes necessary to determine whether bonds or certificates issued in pursuance of the provisions of the act above mentioned, create an indebtedness within the inhibition of article 13. It is essential, therefore, that we consider the act and ascertain its scope, purpose and effect. An examination of the statute discloses at once that the entire cost and expense of constructing any work or improvement provided for therein, for the payment of which bonds or certificates may be issued, is to fall primarily and exclusively upon the property benefited, except only for such part of the work as shall be occupied by street and alley crossings, the expense of which the corporation is to pay. Provision is made whereby, during the progress of the work estimates may be made from time to time of the amount of work done by the contractor, and the amount of the estimates, less a...