Miller et al. v. City of Evansville et al.

No. 30,114

Supreme Court of Indiana

244 Ind. 1; 189 N.E.2d 823; 1963 Ind. LEXIS 152

 
April 30, 1963, Filed

PRIOR HISTORY:  [***1] 

From the Vanderburgh Probate Court, French Clements, Judge.

Appellants, Robert J. Miller, M. D. and others, were denied permanent injunction, enjoining appellees, City of Evansville and others, from placing flourides in city water, from purchasing flourides and equipment and from taking bids and letting contracts for such purposes. Appellants appeal.

DISPOSITION: Reversed.

COUNSEL: James D. Lopp, of Evansville, for appellants.

Jerome L. Salm, and James W. Angermeier, both of Evansville, for appellees.

JUDGES: Landis, J. Jackson, C.J., and Achor and Arterburn, JJ., concur. Myers, J., not participating.

OPINIONBY: LANDIS

OPINION:  [*2]   [**824]  This is an appeal from a judgment denying appellant a permanent injunction.

On December 2, 1959, appellants brought action as resident taxpayers of the city of Evansville for a restraining order and a temporary and permanent injunction to restrain and enjoin appellee city and the board of trustees of its waterworks department from placing flourides in the city water supply, from purchasing fluorides and equipment and to restrain and enjoin them from taking bids and letting contracts for said purposes. The restraining order was issued  [***2]  on said December 2, 1959, without notice and continued in force until the trial on the permanent injunction when the court below terminated the same and denied the permanent injunction.

 [*3]  Appellants' complaint alleged among other things that the defendants have undertaken and are now undertaking to take bids and let contracts for the providing of equipment and the necessary fluoride drugs to be used in the water supplied by said city of Evansville, which allegations were admitted by the answer to the complaint. The complaint further alleged that the use of said fluorides was an usurpation of unwarranted power by the defendants, not authorized by any city ordinance or through legislative enactment of the State of Indiana. At the trial it was stipulated by and between the parties that there was no city ordinance of the city of Evansville authorizing said city or the board of trustees of its waterworks department to fluoridate its water.

Appellants have cited Burns' 48-5425 (1962 Cum. Supp.), providing as follows:

"Manner of expending funds. -- No part of any funds raised under the provisions of this act [§§ 48-5402 -- 48-5427] shall be expended except upon warrants  [***3]  drawn by the city controller upon vouchers of said board of trustees of said waterworks department. No appropriation shall be necessary, but  [**825]  all funds arising under the provisions hereof shall be deemed appropriated to the respective purposes herein named and shall be under the control of the board of trustees as herein provided and said board shall have full, complete and exclusive authority to expend funds for the purposes herein provided: Provided, That in all second class cities having a population of not less than one hundred and twenty thousand [120,000] and not more than one hundred thirty-two thousand [132,000], according to the last preceding United States decennial census, all funds received by said board of trustees of said waterworks or by said department of waterworks, under the provisions of this act [§§ 48-5402 -- 48-5427] or otherwise, whether from charges to users of water or services of said department or  [*4]  from the sale of bonds or otherwise, shall be expended only upon specific appropriation theretofore made by the common council of said city as other public moneys are appropriated by such cities. . . ." (Acts 1927, ch. 164, 24,  [***4]  p. 476; 1957, ch. 202, 1, p. 422.) (Italics added.)
Appellants argue that the above mentioned proviso of the statute requiring a specific appropriation is applicable to the city of Evansville and that the common council of such city not having authorized the expenditure of funds, the board of trustees of said city's waterworks department is not in any position to contract for the construction of equipment for the fluoridation of the public drinking water. Appellees have not replied to appellants' contention that the city of Evansville has not by a specific appropriation authorized the expenditure of such funds, as it is required to do under the above statute.

This Court, of course, knows judicially that the city of Evansville at the time this suit was instituted n1 (December 2, 1959), was a city of the second class, and according to the last preceding U.S. decennial census had a population of 128,636. n2

The authority of persons to enter into contracts and agreements on behalf of cities is limited by Burns' 48-1507 (1950 Repl.), which provides:

"No executive department, officer or employee thereof shall have power to bind such city to any contract or agreement, or  [***5]  in any other way, to any extent beyond the amount of money at the time already appropriated by ordinance for the purposes of such department; and all contracts and agreements, express or implied, and all obligations  [*5]  of any and every sort, beyond such existing appropriations are declared to be absolutely void: . . . ." (Acts 1905, ch. 129, 85, p. 219.)

 
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n1 A decree in equity generally operates on the parties and subject matter as they stood as of the time of the commencement of the suit. 30 C. J. S., Equity, 600, p. 990.

n2 Census of 1950.
 
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Decisions of this Court have held that all contracts made in violation of this section are invalid and a subsequent appropriation will not validate the same, and further, that a resident taxpayer who will be affected thereby may maintain an action for injunction against the payments of any claims thereunder. The City of Indianapolis v. Wann, Receiver (1896), 144 Ind. 175, 185, 42 N. E. 901, 904, 31 L. R. A. 743, 756; Hamer v. City of  [***6]  Huntington (1939), 215 Ind. 594, 601, 605, 21 N. E. 2d 407, 411, 412; Brayton v. City of Rushville (1918), 68 Ind. App. 238, 243, 244, 120 N. E. 48, 49, 50. See also: Opinion of Attorney General (1944), p. 464.

We are constrained to hold that the city of Evansville had no authority in this case to take bids and let contracts in the absence of a valid appropriation and that  [**826]  the court below erred in overruling appellants' motion for new trial.

Judgment reversed with instructions to sustain the motion for new trial.

Jackson, C.J., and Achor and Arterburn, JJ., concur.

Myers, J., not participating.



Miller et al. v. City of Evansville et al.

No. 30,501

SUPREME COURT OF INDIANA

247 Ind. 563; 219 N.E.2d 900; 1966 Ind. LEXIS 402

 
September 27, 1966, Filed

PRIOR HISTORY:  [***1] 

From the Vanderburgh Probate Court, Morris S. Merrell, Judge.

Appellants, Robert J. Miller, M.D., et al., appeal from the denial of an injunction sought by them to restrain appellees, City of Evansville et al., from placing fluoride in the city water supply.

DISPOSITION: Reversed.

COUNSEL: James D. Lopp, of Evansville, for appellant.

Jerome L. Salm, Robert S. Matthews, David M. Keck, and James W. Angermeier, of Evansville, for appellees.

JUDGES: Jackson, J. Myers, J., concurs. Arterburn, J., concurs in result. Rakestraw, C. J. and Achor, J., not participating.

OPINIONBY: JACKSON

OPINION:  [*564]   [**900]  This is an appeal from the denial of an injunction sought by appellants in a taxpayers action for the purpose of restraining defendants-appellees from placing in the water supply of the City of Evansville, Indiana, fluorides which appellants contend would produce irreparable injury and would further be a violation of their constitutional rights as guaranteed by the First and Fourteenth Amendments to the Constitution of the United States and the Bill of Rights of the Constitution of the State of Indiana.

The issues were formed by the complaint in twenty-eight rhetorical  [***2]  paragraphs, the  [**901]  supplemental complaint and the answers to the original and supplemental complaints.

Appellants' Assignment of Errors is the single specification that "[t]he Court erred in overruling appellants' Motion for a New Trial."

The evidence of the witnesses produced at the trial, pro and con, is quite voluminous and in the opinion of the writer need not be set out, or even commented on at length as there  [*565]  is a diversity of opinion as to the necessity or efficacy of the proposed fluoridation. The proponents urging the medical desirability thereof in the treatment of dental caries in that portion of the populace between the ages of six and twelve; the opponents thereof urging the deleterious effect of such treatment on the aged and ill, the violation of constitutional rights and religious freedom. The parties have, by stipulation, fixed boundaries and limitations we need not exceed.

Such stipulation contained the following paragraph:

"There is not now nor has there ever been a city ordinance in the City of Evansville, duly enacted by the Common Council of the City of Evansville, authorizing or directing the City of Evansville, or the defendants,  [***3]  Glen L. Ogle, Sr., Karl Hahus, Arthur P. Walling and Arthur R. Lastwood (sic), who are the Trustees constituting the Board of Trustees of the Evansville, Indiana Waterworks Department to fluoride the drinking water in the City of Evansville."
The status relative to the general powers of cities and towns that are applicable to the case at bar are as follows:
"Authority or power -- How made effectual. -- Wherever there is a grant of authority or power conferred by any section or sections of this act upon any officer or board of any city or town, and no method is provided herein for the exercise of such authority or power, and a method for the exercise of such authority or power is necessary to be provided by law to make such grant of authority or power effectual, and a method for the exercise of such or similar authority or power is provided by any other section or sections of this act, or by any other law of this state applicable to the exercise of the authority so granted, then such other section or sections, or other law, so far as the same provide a method for the exercise of such authority or power herein conferred, may be followed as fully as if incorporated in and made  [***4]  a part of the provisions of this act granting such authority or power. And wherever there is a grant of authority or power conferred by this act, and no method is provided by this act or by any other general law, as herein referred to, for the exercise of such authority or power, the common council of any city or the board of trustees of any town may, by ordinance, provide  [*566]  such method." Acts 1905, ch. 129, 270, p. 219, 48-501, Burns' 1963 Replacement.

"Legislative authority -- The legislative authority of every city shall be vested in a common council." Acts 1905, ch. 129, 47, p. 219, 48-1401, Burns' 1963 Replacement.

"Legislative power -- Appropriations. -- The common council of every city shall have power to pass all ordinances, orders, resolutions and motions for the government of such city, for the control of its property and finances and for the appropriation of money. . . ." Acts 1905, ch. 129, 52, p. 219, 48-1406 Burns' 1963 Replacement.

"General power of council. -- The common council of every city shall have power to enact ordinances for the following purposes:
. . . .

"Ninth. To authorize the cleansing and purification of water and  [***5]  water-courses, by the board of public works or other designated authority; to prevent encroachment of injury to the banks of streams, or the casting into the same of  [**902]  offal, dead animals, logs, rubbish, dirt or impure liquids. For the purpose of this clause, jurisdiction is hereby conferred upon cities for ten [10] miles from the corporate limits thereof.
. . . .

"Eighteenth. To regulate and require reports and records of births and deaths, and to make such requirements as may be deemed necessary to prevent the spread of contagious or infectious diseases; and to make all regulations that may be deemed expedient for the promotion of health and the suppression of disease." Acts 1905, ch. 129, 53, p. 219, 48-1407, Burns' 1963 Replacement.

It is quite clear and beyond question that the powers and duties devolving upon municipalities pursuant to the appropriate statutes provide for the exercise of the police powers necessary for the development, operation and continued functioning of the municipality.

In the case at bar only the common council of the City of Evansville, Indiana, possessed the power, under appropriate proceedings, to enact the ordinance or ordinances  [***6]  providing for the fluoridation of the city water provided by appellee city. The stipulation entered into  [*567]  shows conclusively that the common council of the City of Evansville has not exercised this power and consequently no authority exists by which fluoridation can be instituted.

This cause is reversed and remanded with instructions to sustain appellants' Motion for New Trial and for further proceedings not inconsistent with this opinion.

Myers, J., concurs. Arterburn, J., concurs in result. Rakestraw, C. J. and Achor, J., not participating.


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