Spaulding v. Baxter

• Decision Date: 15 November 1900
• Docket Number: 3,134
• Citation: 58 N.E. 551,25 Ind.App. 485
• Parties: SPAULDING ET AL. v. BAXTER ET AL
• Court: Indiana Appellate Court

58 N.E. 551

25 Ind.App. 485

SPAULDING ET AL. v. BAXTER ET AL

No. 3,134

Court of Appeals of Indiana

November 15, 1900

From the Blackford Circuit Court.

Reversed.

J. A Hindman, for appellants.

J. S Dailey, Abram Simmons, F. C. Dailey and C. W. Kinnan, for appellees.

OPINION

ROBINSON, C. J.

Complaint in four paragraphs by appellee Baxter, as assignee of the contractor, to collect a sewer assessment. Demurrer overruled. Answer in denial and second paragraph of special answer. Demurrer to second paragraph sustained. General denial withdrawn and judgment on the pleadings. Errors are assigned upon the rulings on the demurrer to the complaint and answer.

Objection is made to the complaint that it fails to show the council ever adopted any resolution declaring the necessity for the sewer; that it is not shown the contract was let to the best bidder; and that it is not shown any notice was given of the adoption of the resolution for the construction of the sewer. The complaint avers that the council passed and adopted a resolution "declaring the desirability of, and ordering the construction of, a sewer along" (giving the route). The language used in the pleading is sufficient as to the statutory requirements of a declaratory resolution. Declaring the desirability of an improvement substantially complies with the statute. Besides, the council has the exclusive right to judge of the necessity for the improvement, and when it acts, and orders the improvement made, such action necessarily involves a determination of the necessity for the work. See Pittsburgh, etc., R. Co. v. Hays, 17 Ind.App. 261, 44 N.E. 375.

As to the second objection, it is averred that notice was published calling for bids, and afterwards the bid of a person named was accepted. The council has the right to choose between bidders, and in exercising that right we must presume that it "acted in good faith and for the best interests of both the city and the property holders, and exercised its discretionary powers wisely." Boyd v. Murphy, 127 Ind. 174, 25 N.E. 702.

The complaint does not show that any notice of a resolution of necessity was given. The pleading avers that, after the adoption of the resolution declaring the desirability of a sewer, specifications were adopted and the city clerk ordered to advertise for bids, which was done; that the contract was let, the work done, sewer accepted, report of final estimate by city engineer, and notice given to hear and consider objections to this report. § 4289 Burns 1894 provides: "Whenever cities or incorporated towns subject to the provisions of this act shall deem it necessary to construct any sewer, * * * * the council or board of trustees shall declare by resolution the necessity therefor, and shall state the kind, size, location and designate the terminal points thereof, and notice for ten days of the passage of such resolution shall be given for two weeks in some newspaper of general circulation published in such city or incorporated town, if any there be, and if there be not such paper, then in some such paper printed and published in the county in which such city or incorporated town is located. Said notices shall state the time and place, when and where the property owners along the line of said proposed improvement can make objections to the necessity for the construction thereof." § 4290 Burns 1894 provides for apportioning the cost of the improvement. § 4292 gives the common council power to order and make the improvement by a two-thirds vote without any petition. § 4293 provides for making the final estimate of the cost of the improvement. § 4294 provides for notice and hearing of objections to final estimates. § 4296 provides for issuing bonds and makes them a lien on the property assessed.

It has been decided that the resolution of necessity and the resolution ordering the work may be adopted by the council as one resolution. Barber, etc., Co. v. Edgerton, 125 Ind. 455, 25 N.E. 436. The statute above set out requires that notice of the resolution of necessity shall be given, but it has been held that "As to whether a particular improvement is, or is not, necessary must, of necessity, be left to the discretion of the common council of the city where the improvement is to be made. This question, we think, under the statutes in force in this State, may be determined by such council without notice to the property owner who is to be affected by such improvement." Barber, etc., Co. v. Edgerton, supra; Garvin v. Daussman, 114 Ind. 429, 16 N.E. 826; Bozarth v. McGillicuddy, 19 Ind.App. 26, 47 N.E. 397; Pittsburgh, etc., R. Co. v. Hays, 17 Ind.App. 261, 44 N.E. 375; Hughes v. Parker, 148 Ind. 692, 48 N.E. 243; Lewis v. Albertson, 23 Ind.App. 147, 53 N.E. 1071.

In Hughes v. Parker, supra, in answer to the argument that the council never acquired jurisdiction of the subject-matter of the improvement, or of the persons of the property owners assessed therefor, for the reason that no resolution was ever passed, or notice thereof given, as required by § 4289 Burns 1894, the court said: "It must be admitted that the proceedings of the council in this matter were irregular. The resolution of necessity should have been adopted and notice thereof given as provided in the statute. But it has been repeatedly held that such resolution and notice are not essential to give jurisdiction to the council, provided only that notice and a hearing are given to the property owners before the making of the final assessments." The complaint shows that notice was given for hearing objections to the final estimates as provided in § 4294 Burns 1894, and under the above rulings this was sufficient, without any resolution of necessity and notice thereof. The demurrer to the complaint was properly overruled.

The second paragraph of answer alleges that on August 18, 1896 the common council by resolution ordered the construction of the sewer; that the resolution contained among others the following provision: "And it is further ordered and ordained that in the opinion of the common council of said city it is desirable to pay, and the same is hereby ordered to be paid, the entire cost of building, constructing, and laying the above described sewer, out of the general funds of said city, and the city clerk is hereby ordered to advertise for bids for three consecutive weeks in the Evening Herald of said city for sealed proposals for the construction of said sewer;" that the clerk duly advertised for bids; that no other order, resolution, or advertisement for bids was made or published; that it was provided in the order, resolution, and advertisement for bids, that all bids should be submitted on blanks furnished by the city and required each bidder to propose to accept the obligations of the city in payment for the work; that one Miller submitted a bid and proposed to accept the obligations of the city for the work, and a contract was entered into in which Miller agreed to accept city bonds for the work; that as the work progressed estimates were made, bonds issued, and accepted by Miller; that on September 7, 1897, the civil engineer reported the completion of the work, which report was adopted and the work accepted; that no notice whatever was given of the passing of the resolution for the construction of the sewer and ordering the work to be done, and relying upon the belief that the work was being done wholly at the cost and expense of the city and that the same would be paid out of the general funds of the city as provided for in the resolution, ordinance, and contract, appellants offered no objection thereto, and allowed the same to proceed to completion, without objection, because of such information and belief; that when the resolution was passed, bids advertised for, and the contract let, the debts of the city exceeded two per centum of the taxable property; that city orders were selling at a discount of twenty to sixty per cent. which was generally known; that by reason of such excessive indebtedness contractors refused to submit competitive...