Ross v. Stackhouse

• Decision Date: 27 March 1888
• Docket Number: 13,157
• Citation: 16 N.E. 501,114 Ind. 200
• Parties: Ross v. Stackhouse
• Court: Indiana Supreme Court

16 N.E. 501

114 Ind. 200

Ross v. Stackhouse

No. 13,157

Supreme Court of Indiana

March 27, 1888

From the Tippecanoe Circuit Court.

The judgment is reversed, with costs.

G. O Behm, A. O. Behm, R. P. Davidson and J. C. Davidson, for appellant.

W. D Wallace and F. B. Everett, for appellee.

OPINION

Mitchell, C. J.

Stackhouse appealed from a precept issued by order of the common council of the city of Lafayette, in favor of John A. Ross, for the collection of assessments made upon the property of the former, the latter having, as is alleged, duly completed a contract entered into with the city for the improvement of a certain street. A transcript of all the proceedings had before the common council was filed in the circuit court. It appeared that a properly entitled ordinance had been duly adopted on the 20th day of November, 1882, in and by which it was ordained, among other things, "that Fifth street, from the south line of Alabama street to the north line of Romig street, be improved by gravelling in street, brick sidewalks and paved gutters," according to specifications to be prepared by the city civil engineer. The ordinance further required that the city clerk should advertise for bids, after the specifications had been prepared by the engineer and adopted by the council, and provision was also made for assessing the cost of the improvement against the abutting property.

The letting of the work was duly advertised, and, on the 18th day of December, 1882, at a regular meeting of the common council, all the bids, including one made by Ross, were, by a vote of the council, rejected. Subsequently on the 15th of the following January, Ross applied to the council and demanded a reconsideration of the vote by which the bids were rejected, on the ground that he was entitled to the contract, his being, as he asserted, the lowest and best bid submitted. Afterwards, on the 5th day of February, 1883, the council reconsidered its action, and let the contract to Ross, he having proposed to do the work for some three hundred dollars less than any other bidder. The work was duly executed by the contractor and accepted by the city, final estimates having been regularly made and approved before the precept appealed from was ordered.

The court sustained a demurrer to the transcript, which, under the statute, constitutes the complaint on appeal, in a proceeding such as this. The contractor, Ross, prosecutes this appeal.

The ruling of the circuit court is defended upon two grounds. It is argued that the proceedings of the common council in ordering, and contracting for, the improvement were void, (1) because, having once exercised the right of decision by rejecting all bids, and then adjourning generally, it is insisted that its power to let the work was thereby exhausted, and that it could not proceed without ordering a new advertisement. (2) It is contended that the ordinance, as above set out, under which the improvement was made, was too vague and indefinite to constitute a valid order for the work.

While it is true that the statute prohibits the trial of any question of fact which arose prior to the making of the contract for a street improvement, it is nevertheless essential that the transcript should show the taking of such jurisdictional steps as legally authorized the common council to contract for the improvement. It must appear that the letting of the contract was advertised. In the absence of notice inviting proposals for the work, the contract will be invalid. Moore v. Cline, 61 Ind. 113; Overshiner v. Jones, 66 Ind. 452; Yeakel v. City of Lafayette, 48 Ind. 116; Baker v. Tobin, 40 Ind. 310; Moberry v. City of Jeffersonville, 38 Ind. 198; City of Indianapolis v. Imberry, 17 Ind. 175; Anthony v. Williams, 47 Ind. 565.

In the present case, it is not denied but that the letting of the contract was properly advertised in the first instance, but it is said, because the common council voted to reject all the bids, its power in respect to that advertisement and letting was at an end, and that all its subsequent proceedings were void.

It is settled that where the act or decision of a common council, or other similar body, is done or made in pursuance of notice which the law requires, and is in its nature such as to adjudicate upon, or determine, or affect the substantial personal or property rights of those notified, a decision once rendered can not ordinarily be rescinded or set aside. City of Madison v. Smith, 83 Ind. 502. This rule has no application, however, to matters of a merely administrative or legislative character. Bodies having cognizance of such subjects may modify, repeal or reconsider their action in regard to matters of that nature, at any time, provided the vested rights of others are not thereby affected. Over such matters they exercise a continuing power. Welch v. Bowen, 103 Ind. 252, 2 N.E. 722; Board, etc., v. Fullen, 111 Ind. 410.

The purpose of requiring the letting of contracts for street improvements to be advertised is to secure fair competition, and to enable the common council to let the contract upon the most advantageous terms. 1 Dill. Munic. Corp., section 468. The advertisement is not to give notice to the property-holders, nor does the letting of the contract adjudicate upon or determine in any degree their personal or property rights. The matter of accepting or rejecting bids, and of letting the contract, is purely administrative in character, depending entirely upon the discretion of the common council. Platter v. Board, etc., 103 Ind. 360, 2 N.E. 544.

The right to reconsider measures, in pursuance of rules adopted for its government, inheres in every body possessed of legislative power, and unless such right be exercised unreasonably and for a fraudulent purpose, to the injury of the complaining party, courts can not interfere. It does not appear but that the council, in reconsidering its previous vote, proceeded in strict conformity to its rules, and, as no rights had attached, we can perceive no sufficient reason for holding its proceedings void.

Without considering that feature of the case further, we are quite certain, since the record shows that the letting of the contract was advertised, that the rejection of the bids and the subsequent reconsideration of its vote by the common council can not render the notice which appears in the record, and which the council must have adjudged sufficient of no effect. Section 3165, R. S. 1881, declares, in effect, that no question of fact shall be tried on appeal, in a case like the present, which may have arisen prior to...