Home/Indiana Court of Appeals/Metzger v. Dunn, County Auditor

Metzger v. Dunn, County Auditor

161 N.E. 846, 97 Ind. App. 109, 1928 Ind. App. LEXIS 186
CourtIndiana Court of Appeals
DecidedApril 26, 1928
DocketNo. 13,009.
StatusPublished

This text of 161 N.E. 846 (Metzger v. Dunn, County Auditor) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Metzger v. Dunn, County Auditor, 161 N.E. 846, 97 Ind. App. 109, 1928 Ind. App. LEXIS 186 (Ind. Ct. App. 1928).

Opinion

Enloe, J.

— This action was brought by the appellants, as taxpayers, on behalf of themselves and other tax payers, to enjoin the auditor, treasurer, and board of commissioners of Marion County, and the mayor, controller, and members of the board of public works of the city of Indianapolis from issuing and selling bonds of the county and city, respectively, the proceeds of which bonds, when so sold, the said appellees were proposing to expend and use in the improvement of certain streets. The appellees were proceeding, so they contend, under the provisions, and under the authority conferred upon them by the provisions of Ch. 235, Acts of 1921, p. 687, §10457 et seq., Burns 1926.

The cause was tried by the court and there was a special finding of the facts, and a statement of conclusions of law adverse to the contention of appellants and from the judgment rendered upon such conclusions this appeal is prosecuted. The only question we need to decide is as to whether the said proposed improvement, under the facts as found by the court, is one within the provisions of said statute, for if it is not, the issuance and sale of the said proposed bonds would be without authority of law and should be enjoined.

*111 The title of the act involved in the decision of this case is as follows:

“An Act concerning the improvement of streets and public highways in cities of the first class, which connect with, extend or continue as hard surface public highways beyond the corporate limits of such city in the county in which such city is located, providing for the assessment of part of the cost of such improvement against the abutting real estate and the remainder of the cost of such improvement shall be paid equally by such city and the county in which such city is located, and declaring an emergency.”

In the first section of said act it is provided that: “The cost of improving any street or public highway in cities of the first class, which connect with, extend or continue as a hard surface public highway beyond the corporate limits of such city into the county in which such city is located, in excess of the amount that may be assessed as special benefits against the real estate abutting on such street or highway or part thereof so improved,' shall be paid equally by such city and such county in which such city is located as provided in this act.”

In section two of said act it is provided: “Whenever the board of public works of any city of the first class desires to improve, with any one of the kinds of modern -pavements, any street or public highway in such city, in whole or in part, which connects with, extends or continues as a hard surface public highway beyond the corporate limits of such city into the county in which such city is located, said board of public works shall adopt a preliminary resolution for the improvement of; such street or public highway or part thereof, so proposed to be improved, and proceed in all other respects as now provided by law. . . .” In the case at bar the streets which it is proposed to improve may be described as *112 follows: Hillside Avenue beginning at the point where said avenue connects with Bloyd Avenue and from thence in a northeasterly direction to the junction of Hillside Avenue and Baltimore Avenue; Baltimore Avenue from the point where it connects with Hillside Avenue in a northerly direction to the point where it connects with 34th Street at the corporate limits of the city. The accompanying plat will indicate the streets involved herein: (See following page.)

The facts found by the trial court, which are of any controlling influence upon the question now under consideration, are in substance as follows: That the said proposed bond issue is to cover the cost of improving both Hillside Avenue and Baltimore Avenue, in the city of Indianapolis to the center line of 34th Street, an improvement connecting a hard surface pavement at Bloyd Avenue with a hard surface pavement at 34th Street, which was constructed as county highway and extended into the county beyond the corporate limits of the city; that 34th Street, from its intersection with Baltimore Avenue, for a considerable distince both to the east and to the west, constitutes the north corporation line of the city of Indianapolis; that the portion of Hillside Avenue which it is proposed to improve is entirely within the city of Indianapolis, and more than one mile from the corporate limits of said city; that the board of public works of the city of Indianapolis adopted two separate declaratory resolutions for the improvements of said streets, the one covering the portion of Hillside Avenue which it was proposed to improve, and the other covering Baltimore Avenue; that two separate agreements were entered into between the board of public works, and the board of commissioners of Marion county, the one covering the improvement of Hillside Avenue, and the other covering Baltimore Avenue; that the said city is proposing to make one issue of bonds to cover its *114 agreed proportion of the costs of said proposed improvements, and that Marion county is proposing to make one issue of bonds, in the sum of $62,000, to pay for its portion of the costs of said improvements, as agreed upon by said board of commissioners and said board of public works; that Baltimore Avenue is not paved or improved north of 34th Street; that the corporate line of the city of Indianapolis is the center of 34th street, for some distance east and west of Baltimore Avenue. There was also a finding that the appellants were taxpayers, as alleged in the complaint, and that the said city and county officials would, unless restrained, issue bonds for the purpose of financing said proposed improvements.

*113

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Cite This Page — Counsel Stack

Bluebook (online)
161 N.E. 846, 97 Ind. App. 109, 1928 Ind. App. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metzger-v-dunn-county-auditor-indctapp-1928.