Robinson v. The City of Valparaiso
| Decision Date | 22 February 1894 |
| Docket Number | 16,704 |
| Citation | 36 N.E. 644,136 Ind. 616 |
| Parties | Robinson et al. v. The City of Valparaiso et al |
| Court | Indiana Supreme Court |
From the Porter Circuit Court.
The judgment is affirmed.
H. A Gillett and N. L. Agnew, for appellants.
A. D Bartholomew and A. L. Jones, for appellees.
There is but one error assigned in this case, and that is sustaining demurrers to the amended complaint.
Briefly stated, the suit was brought to enjoin the city from accepting a system of sewers and from paying therefor by assessment or otherwise, on account of the defective construction thereof by the contractors.
The complaint sets out the proceedings of the city authorities leading up to, and the making of, a contract with the appellees, Dickover and Salyer, for the construction of the entire system; that the contractors had entered on the work and proceeded therewith to a point where it was claimed by the contractors to be about complete, and that the city was about to proceed and threatening to accept the work without any inspection thereof, and go on with the work on the basis that it was properly done; that in fact the work is not done according to contract, but, on the contrary, is so defectively done as to be worthless for the purpose intended, so that the use thereof does and will constitute a nuisance. The defects complained of are particularly set forth in the complaint.
The suit was brought by eighty-five abutting lot owners, describing their respective lots which would necessarily be assessed for the construction of the sewer, and the fact that they were each and all general taxpayers in the city, and their said lots occupied for residence purposes.
As relating to a suit of this nature, it is said in Elliott's Roads and Streets, 442, that
That the decisions of this court are in harmony with the law as thus declared, see McEneney v. Town of Sullivan, 125 Ind. 407, 25 N.E. 540, and cases there cited.
The statute under which the work in this case was done, is the act of the General Assembly, "providing the mode and manner of making street and alley improvements and building sewers," approved March 8, 1889, known as the Barrett Law (Acts 1889, p. 237), as the same was amended by the act approved March 6, 1891 (Acts 1891, p. 323). The latter act went into effect on its approval, by reason of an emergency clause.
It appears, from the complaint, that, in accordance with the terms of the statute, the common council did, on the 18th of July, 1890, and again on the 27th of March, 1891, adopt resolutions "of necessity," showing that, in the opinion of the council, the work of building such sewer system should be undertaken; that notice, as required by statute, was given to owners of property to be affected, of the time and place when and where they could appear and object to the necessity for the construction of such sewers, as described in said resolutions; that on April 24, 1891, bids to do the work provided for in the resolutions were advertised for; that on May 22, 1891, by resolution duly passed, the common council found that due notice had been given to owners of property to be affected by such work, and ordered the sewers constructed in accordance with said statute; that, afterwards, on said May 22, 1891, the appellees Dickover and Salyer filed their bid for such work; that on May 26, 1891, the council accepted said bid and entered into contract with Dickover and Salyer for the construction in accordance with the resolutions and bid, which were made parts of the contract the work to be paid for on estimates and assessments, within forty-five days after completion, or within such time as the city may issue and sell bonds therefor, as provided by said statute.
The complaint continues: "That thereupon, in pretended fulfillment of said contract, the said Dickover and Salyer entered upon the work called for by said contract, and have continued the same from time to time hitherto, and the said city has caused partial estimates to be made for said work and orders to be issued therefor, payable out of the fund to be derived from assessments upon abutting property; and the said Dickover and Salyer now pretend that the said work is about complete, and are insisting upon a final estimate thereof, and that the city shall proceed to assess abutting property to pay said former orders and any amount still due, and issue bonds in that behalf, and the city is threatening to comply with said request, to accept said work as done in compliance with said contract."
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