Rissing v. The City of Fort Wayne
| Decision Date | 25 April 1894 |
| Docket Number | 17,019 |
| Citation | 37 N.E. 328,137 Ind. 427 |
| Parties | Rissing et al. v. The City of Fort Wayne |
| Court | Indiana Supreme Court |
From the Allen Superior Court.
The judgment dismissing the appeal is affirmed.
W. G Colerick, for appellant.
W. H Shambaugh, for appellee.
This was an appeal to the court below from the decision of the common council of the city of Fort Wayne, approving a report of the city commissioners on the opening and widening of High street in said city.
The report of the city commissioners was approved by the common council on November 10, 1891, and the appeal was taken December 14, 1891.
The appellee moved the court to dismiss the appeal on the ground that it had not been taken within the thirty days prescribed by the statute (section 3643, R. S. 1894; section 3180, R. S 1881.)
The court, on hearing affidavits filed by both parties, sustained appellees' motion and dismissed the appeal. This ruling is the only error assigned.
By section 3638, R. S. 1894, on the confirmation of the final report of the city commissioners by the common council, it is made the duty of the city clerk to deliver a certified copy of the report to the city treasurer; and, by section 3640, R. S. 1894, it is made the duty of the treasurer, within ten days after the receipt of the report to notify the resident owners of the lands assessed "of the assessment, the date of filing, and the amount assessed."
The following form of notice was given appellants by the city treasurer:
The appellants claim that, according to this notice, their appeal, taken December 14th, 1891, was in time, and that the city is estopped from denying that the report of the city commissioners was confirmed by the council on November 14th, 1891. The appellee, on the other hand, contends that the city is not estopped from showing the true day on which said report was confirmed, to wit: the 10th day of November, 1891, and that, therefore, the appeal, taken on the 14th day of December, 1891, was too late.
There is not much doubt that if the appellants had appeared before the common council on the evening when the report of the city commissioner was filed, for the purpose of remonstrating against the confirmation of the report, and appellants were then and there informed by the council that the report would not be taken up for approval until a subsequent meeting, and if, after the departure of the appellants from the council chamber, the council had secretly confirmed the report, and the appellants were thus prevented from appealing in time, there would, in such case, have been good cause to raise the plea of estoppel against the city. And we are of opinion that the cases relied upon by appellants will be found to be of this character. Such cases are Breitweiser v. Fuhrman, 88 Ind. 28; Munson v. Blake, 101 Ind. 78; Brall v. Agnew, 15 Ill.App. 122; Denton v. Thompson, 136 Ind. 446, 35 N.E. 264.
It may also be that a municipal corporation will be estopped by the action of its proper officers when the corporation is acting in its private, as contradistinguished from its governmental capacity, and has lawful power to do the act. City of Chicago v. Sexton, 115 Ill. 230, 2 N.E. 263.
But we have here no such case. In the case at bar the common council, in its action upon the report of the city commissioners, in no way deceived or misled the appellants. Neither was the city here acting in its private capacity, as in making a simple business contract, but was in the exercise of its governmental power, as prescribed by statute, for the opening of public streets. In such a case the action of the city treasurer complained of, being outside his duties and powers, as fixed by law, could not estop the city; for, as has been expressly held by this court, "it is a fundamental principle that a governmental corporation is not estopped by the act of an officer in cases where the act is beyond the scope of his authority." Union School Tp. v. First Nat'l Bank, 102 Ind. 464, 2 N.E. 194.
The statute fixes, in detail, the different steps that must be taken by petitioners, common council, city commissioners and remonstrants, in the laying out of streets and alleys. In these proceedings the city speaks by its record. By the notice given appellants, advising them of the time,...
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