Taber v. Grafmiller

• Decision Date: 11 January 1887
• Citation: 109 Ind. 206,9 N.E. 721
• Parties: Taber v. Grafmiller and others.
• Court: Indiana Supreme Court

109 Ind. 206

9 N.E. 721

Taber

v.Grafmiller and others.

Supreme Court of Indiana.

January 11, 1887.

Appeal from circuit court, Allen county.

T. E. Ellison, for appellant.

Elliott, C. J.

The appellant sought by this suit to restrain the city of Fort Wayne from enforcing an assessment proposed to be made for the cost of constructing a sidewalk. The resolution adopted by the common council reads thus:

“A resolution to grade and pave with brick the sidewalks on both sides Baker street, from Webster street to Fairfield avenue.

Be it resolved by the common council of the city of Fort Wayne (two-thirds of the members thereof concurring) that the sidewalks on both sides of Baker street, from Webster street to Fairfield avenue, be graded to a width of 10 feet, and paved with brick to a width of 6 feet; and be it further resolved (this council hereby declaring such improvement necessary) that the costs and expenses thereof be assessed against and collected from the owners of lots or lands bordering on said sidewalks, according to the provisions of sections 68, 69, 70, and 71 of the act of the general assembly of the state of Indiana approved March 14, 1867, for the incorporation of cities, and that said improvement shall be made under the supervision and to the satisfaction of the city civil engineer, and in accordance with plans and specifications on file at the office of said engineer; and be it further resolved that the city civil engineer set the proper stakes, and advertise for two days, in each of two successive weeks, in the Fort Wayne Daily Sentinel and Tri-weekly Staats Zeitung, that sealed proposals will be received by this council, at a meeting to be held on the ------ day of ------, 188-, for the execution of said work.”

We think that this resolution was sufficient to authorize the improvement described in it. We do not understand that it is necessary to describe the character of the improvement in detail, but we think that it is sufficient to provide that the improvement shall be of a designated character without specifying with particularity of detail what it shall be. We do not regard the case as within the rule declared in Smith v. Duncan, 77 Ind. 92, for there is here no delegation of authority; nor is it within the decision made in Merrill v. Abbott, 62 Ind. 549, for there is here a specification of the nature of the work, which it is ordered shall be done at the expense of the property owners. There is here what was said in Merrill v. Abbott, supra, to be necessary,-“a general direction as to the plan of the work;” for the resolution clearly implies that there is an existing grade, properly established. Wren v. City of Indianapolis, 96 Ind. 206, see page 218. There is certainly enough in the resolution to constitute a basis for letting the contract, and this, as decided in Merrill v. Abbott, is what the law requires.

The fact that no plans or specifications were on file in the office of the city engineer at the time the resolution was adopted, did not vitiate the resolution, for nothing was delegated to him, nor any...