Scott v. City of Goshen

• Citation: 70 N.E. 79,162 Ind. 204
• Decision Date: 19 February 1904
• Docket Number: 20,052
• Parties: Scott v. City of Goshen et al
• Court: Indiana Supreme Court

70 N.E. 79

162 Ind. 204

Scott v. City of Goshen et al

No. 20,052

Supreme Court of Indiana

February 19, 1904

From Elkhart Circuit Court; J. D. Ferrall, Judge.

Suit by John F. Scott against the city of Goshen and others. From a judgment in favor of defendants, plaintiff appeals.

Reversed.

Vail & Wehmeyer, for appellant.

C. W Miller, J. S. Drake and S. C. Hubbell, for appellees.

OPINION

Monks, J.

Appellant a resident taxpayer of the city of Goshen, Indiana, brought this action on August 8, 1902, to enjoin said city from permitting the school trustees of said city to contract for the construction of a high school building which was to cost about $ 42,000, and to enjoin the school city and the school trustees from letting the contract for said school building and issuing evidences of indebtedness for the cost thereof. Each appellee filed a separate demurrer for want of facts to the complaint, which was sustained, and appellant refusing to plead further judgment was rendered against him.

The assignment of error calls in question the action of the court in sustaining each of said demurrers to the complaint.

It was alleged in the complaint and admitted by the demurrers that, at the commencement of the action, appellant was a resident taxpayer of said city; that the taxable property within the corporate limits of said city at the last assessment was $ 3,194,755, two per cent. of which was $ 63,895; that the indebtedness of the city was more than $ 119,000, $ 8,000 of which was evidenced by bonds issued by said city in 1896 for the building of a schoolhouse within said city; that the school city in February, 1902, obtained consent of said city of Goshen permitting it to build a new school building, to cost not more than $ 42,000, and that said city is threatening to let said permit continue; that the school city and its trustees are threatening to let a contract to a certain contractor named in the complaint for the construction of a school building in said city to cost $ 42,000, and that neither the city nor the school city has any money with which to pay for said building; that the school city and its trustees are threatening to issue to the contractor evidences of indebtedness of said school city for the construction of said school building amounting to $ 42,000, payable annually for ten or fifteen years out of the special school tax to be levied and collected for that purpose, and to levy each year a special school tax upon the property within said city largely in excess of the amount necessary for the current expenses of said school city, and to use said excess each year in payment of the evidences of indebtedness which they threaten to issue as aforesaid, the same to continue for a long period, to wit, ten to fifteen years.

Each incorporated city in this State is by statute made a "distinct municipal corporation for school purposes, by the name and style of * * * the city corporation, and by such name may contract and be contracted with, sue and be sued, in any court having competent jurisdiction." § 5914 Burns 1901, § 4438 R. S. 1881 and Horner 1901. By § 5920 Burns 1901 it is the duty of the school trustees of their respective townships, towns, and cities to "employ teachers, establish and locate conveniently a sufficient number of schools for the education of the children therein and build or otherwise provide, suitable houses, furniture, apparatus and other articles and educational appliances necessary for the thorough organization and efficient management of said schools." Broad and comprehensive as these powers are, there are other provisions of the statute which clearly restrict the same. §§ 5917, 5918, 5929, 5930, 5975, 5978 Burns 1901, §§ 4441, 4442, 4450, 4451, 4488, 4491 R. S. 1881 and Horner 1901; Wallis v. Johnson School Tp., 75 Ind. 368; Union School Tp. v. First Nat. Bank, etc., 102 Ind. 464, 474, 476, 2 N.E. 194.

In 1873 the General Assembly passed an act entitled "An act to authorize cities and towns to negotiate and sell bonds to procure means with which to erect and complete unfinished school buildings, and to purchase any ground and building for school purposes, and to pay debts contracted for such erection and completion, and purchase of buildings and grounds, and authorizing the levy and collection of an additional special school tax for the payment of such bonds." Acts 1873, p. 60. The first section of said act (§ 5975 Burns 1901, § 4488 R. S. 1881 and Horner 1901) provides "that any city or incorporated town in this State which shall by the action of its school trustee or trustees have purchased any ground and building or buildings, or may hereafter purchase any ground and building or buildings, or have commenced or may hereafter commence the erection of any building or buildings for school purposes, or which shall have by its school trustee or trustees contracted any debts for the erection of such building or buildings, or the purchase of such ground and building or buildings, and such trustee or trustees shall not have the necessary means with which to complete such building or buildings, or to pay for the purchase of such ground and building or buildings, or pay such debt, may, on the filing by the school trustee or trustees of said city or incorporated town of a report under oath with the common council of such city, or the board of trustees of such incorporated town, showing the estimated or actual cost of any such ground and building or buildings, or the amount...