NOTES TO CHAPTER 21. CORPORATIONS - CITIES. ARTICLE 1- INCORPORATION AND ORGANIZATION. 3062. Mayor's duties and powers. This section defines the powers of a mayor of an incorporated city. Inter alia there is conferred on him, within the limits of the city, the jurisdiction and powers of a justice of the peace in all matters, civil and criminal, arising under the laws of the state. In crimes and misdemeanors his jurisdiction is co-extensive with the county in which such city is situated and his jurisdiction is enlarged over that of a justice of the peace, in so far that he may adjudge imprisonment as a part of his sentence, not exceeding thirty days in the city or county prison. Acting as a court within his jurisdiction he is entitled to the same immunity as is accorded to a judge of a court of general jurisdiction; State, ex rel. v. Wolever, 127-310. 3065. Action for penalties. Under this section it is not necessary to file a copy of the ordinance or sections thereof, alleged to have been violated, with the complaint. It is sufficient to recite the number of the section or sections violated. The effect of the statute is to require the defendant, if he claims that the particular sections under which he is charged are invalid, to bring the matter of their invalidity forward by way of defense and not by way of demurrer to the complaint; Elkhart v. Calvert, 126–6; Frankfort v. Aughe, 114-77. 3095. Oath-Bond. This section authorizes the bond of a city clerk to be conditioned for the payment over of all moneys received by him according to law and the ordinances of the city. In an action on the official bond of a city clerk, to recover moneys collected by him pursuant to ordinances of the city and which he failed to pay over and converted to his own use, in breach of the condition of his bond, the sureties on the bond are estopped from denying that the ordinances under which their principal received the moneys, and which were in existence and force when the bond was executed, are void for the reason that under the statutes prescribing the duties of city officers all moneys belonging or due to the city must be paid to its treasurer. By their undertaking they enabled the principal to obtain possession of the money and can not be permitted to say he received it without authority; Middleton v. State, ex rel., 120-169. If a city treasurer loans moneys of the city under the direction of the city council and takes notes for the sums loaned, approved by the council, payable to himself as treasurer, the sureties on his bond are liable for interest collected by him for which he has failed to account; Hunt v. State, ex rel., 124–307. ARTICLE 2 - GOVERNMENT AND POWERS. 3097. Stated and special meetings. If there is a quorum present and a majority of the quorum vote in favor of a measure, it will prevail, although an equal number shall refrain from voting. A majority of the whole number of the members constituting a quorum, a majority of the number of members required to constitute a quorum is sufficient to adopt a proposed measure. So, a city council consisting of six members, all of whom are present at a lawful meeting, if three members vote in favor of a resolution and the other three members, being present, decline to vote, the resolution is legally adopted. Silence is acquiescence, rather than opposition. A refusal to vote is, in effect, a declaration that those who refuse consent that the majority of the quorum may act for the body of which they are members; Rushville G. Co. v. Rushville, 121-208. 3099. Ordinances. A defect in an ordinance can not be remedied on motion of a member of the common council. If the defect can be supplied by the passage of another ordinance, such supplemental ordinance must be published before it can take effect; Bills v. Goshen, 117-227. The power to adopt rules, regulations, by-laws and ordinances, not inconsistent with its charter, is inherent in every municipal corporation as is fully recognized, by this tatute, as to cities. It is only requisite that such ordinances etc. shall not be against public right or palpably unreasonable, as applicable to the subjects to which they relate; A Coal Float v. Jeffersonville, 112–18. 3100. Penal ordinances - Publication. The words "ordinance" and "by-law" are used interchangeably in the statute. They are synonymous. An ordinance in reference to the licensing of a place of amusement is invalid if a fixed and definite license fee is not named therein, which all persons engaged in like business must pay. So, also, if it does not state the time of the duration of the license to be granted. A provision in such an ordinance, fixing the penalty at a maximum rate, is valid; Bills v. Goshen, 117-226. 3101. Expulsion of officers. This section confers express authority on the common council of a city to expel or remove any member of such council or any officer of the corporation, whether elected or appointed. The statute has general application to all the officers of the municipality and requires the council to make provision, by by-law or ordinance, concerning the mode in which charges shall be preferred and for the hearing thereof. The removal may be for neglect or violation of duty, and the power extends to the entertaining and inquiring into the truth of charges of malfeasance in office and reaches to the removal of any or all of the officers for cause shown. A common council is not, however, a judicial body, wherefore in the examination of charges preferred against a municipal officer, with a view to determine whether he shall be removed, and in removing him, it does not act judicially, in such a sense as to subject its proceedings to the jurisdiction of a court of chancery, whether by way of prohibition or injunction. So, it is not within the jurisdiction of equity to enjoin such a council from proceeding to hear and investigate charges preferred against an officer of the municipality and from removing him from office; Muhler v. Hedekin, 119-483. 3103. Streams and ferries. A state may, either directly or through a grant of power delegated to a municipal corporation, exact reasonable license fees from the keepers of ferries living within the state, although their boats ply between landings lying in two different states, this being but the ordinary exercise of the police powers vested in the state or delegated, by it, to the municipal corporation. Under this section a common council of a city may prescribe reasonable regulations for the government of interstate ferries, and may designate the time and place of landing, conformably to the general law (see § 4871-5), and such regulations as the county commissioners are required to make. It may provide wharfage, landing places and other facilities for ferry boats and passengers, and make all such rules and regulations re. specting the use of the same as may tend to prevent confusion and collision and to secure the health, safety and comfort of the public. It may also prescribe penalties for any violation of its reasonable regulations and it may impose a tax, either as a license or otherwise, on the instrumentalities, if within its jurisdiction, which are employed by the ferryman, sufficient to meet the expense of enforcing the execution of its regulations. In respect, however, of such regulations as are expressly committed to county boards, it must be deemed that the power of such boards is exclusive. The hours of each day during which ferry boats shall be run on interstate waters and the rates of ferriage are subject to the control of such county boards and are specially covered by the ferryman's bond (§ 4874); Madison v. Abbott, 118-338. 3106. Powers. Clause 13. By this clause the legislature has given to cities ample power to make, by ordinance, regulations providing that any person keeping a saloon, where intoxicating liquors are sold to be drank on the premises, "shall close the same for the night at 11 o'clock, P. M. of each day, at which time such persons shall raise all door screens and remove any obstructions, so as to give an unobstructed view of the interior, and require all other persons to vacate said premises, and shall not reopen the same until 5 o'clock, A. M. the following morning." Such an ordinance is valid; Decker v. Sargeant, 125-406. This statute authorizes incorporated cities to regulate and license all places where intoxicating liquors are sold. In a complaint in an action to recover a penalty for the violation of an ordinance regulating such a place it is sufficient, in charging the violation, to recite the number of the ordinance or the particular section alleged to have been violated (3066). If defendant claims that the ordinance is invalid he must bring the question of invalidity forward as matter of defense; he can not successfully raise it by demurrer to the complaint; Elkhart v. Calvert, 126-6; Frankfort v. Aughe, 114-77. Clauses 14, 15. It is by virtue of clauses 14 and 15 of this section that a city is given whatever power and right she has to regulate games and sports, to prohibit the same without license and to provide for licensing the same. It is a well settled principle that cities can not discriminate between citizens engaged in the same business. If it licenses, it must license all alike. It is, therefore, material to the validity of an ordinance that a fixed and definite license fee shall be named therein, which all persons engaged in like business shall pay. It must not be left open for a common council to fix the fee to be charged in each particular case, nor can such an ordinance delegate to the mayor the power to fix the fee to be charged. So, also, such an ordinance will be defective if it does not state the time of the duration and validity of the license to be issued; Bills v. Goshen, 117-224. Clause 34. The thirty-fourth subdivision of this section expressly authorizes cities not only to establish and construct wharves, docks, piers and basins and to regulate landing places but, also, to fix the rates of wharfage and dockage, as well as of landing. Under the power granted it was competent for a city to ordain a tariff of rates to be paid by steamboats, barges and other watercraft for the use of wharves of the city and such an ordinance need not declare claims for wharfage to be a lien on the vessel contracting the same;" the statute creates the lien. The provisions of section 5280 apply, the plain meaning of which in connection with thirty-fourth subdivision of this section is, that the claims for which a city may have a lien and an attachment against a boat, vessel or watercraft for landing, wharfage or dockage, are such as have been contracted on behalf of the boat, vessel or water craft by the owner, master, clerk or consignee; but, as the action for the enforcement of the lien is a proceeding in rem, it proceeds on the theory that the debt or claim was contracted by the boat, vessel or watercraft against which the attachment is directed; hence the statutory expression that the class of claims referred to "shall be a lien upon the boat, vessel or watercraft contracting the same; A Coal Float v. Jefferson ville, 112-18. Clause 43. Cities have authority to construct sewers and drains for the protection and improvement of the streets. As incident to this power they have a right to acquire land, or an easement in land, by ordinary methods, in order to carry out the principal power -as to secure an outlet for its drains or sewers (see Leeds v. Richmond, 102-372). It is, also, within the undoubted discretion of a city to adopt proper plans and provide for the construction of such sewers or drains as, in the judgment of its officers, are fit and necessary to carry the water off the streets. A city has likewise an undoubted right to change the plan of its work projected. In the case at bar, the city of Aurora, to drain one of its streets terminating at the river bank, adopted a plan which contemplated the construction of a stone gutter to extend from low water mark to the top of the bank. Plaintiff, for the protection of this work, agreed to make a filling, at both sides of the gutter, in consideration of the grant of the land over which the city had acquired an easement for the purpose of this drainage, to be used for a private landing. Owing to a change in the plan of the work it was found that no landing could be made. The action was brought to recover damages for breach of the contract and to recover for work done under the contract. Plaintiff was not entitled to recover damages for the breach of the contract. He was bound to take notice of the city's right to change the plan of the work. He might recover, however, for work done under the contract, the contract not being within the prohibition of statute or in violation of public policy; Schipper v. Aurora, 121–157. The statute for the incorporation of cities makes no provision for the publication of ordinances except such as are penal in their character. It is the duty of residents of a city to take notice of the acts and proceedings of the common council relating to public matters. So property owners having knowledge that improvements are being made must inform themselves as to the authority there is to make them. The ordinances as to a given improvement having provided how the assessments should be made and the proportion that should be paid by the property holders and by the city; having declared the assessments liens on the property and provided the manner in which the assessments should be collected; if the city saw proper to pay the contractors and levy the assessments in instalments, thereby rendering it less burdensome for the property owners to pay their assessments it should not be prejudiced thereby but the law should regard the city as an equitable assignee of the assessments and allow the precepts to issue in the names of the contractors for the use of the city; Elkhart v. Wickwire, 121-340. The proviso to this clause of section 3106 forbids an assessment for the construction of sewers, during any one year, in excess of ten per cent. of the assessed value of the property to be affected, as the same appears on the tax duplicate for state and county or city taxes. An assessment for the construction of sewers, drains and cisterns which shall be so in excess is void only as to the excess. Persons who seek to annul the assessments can not, in a collateral proceeding, complain until they have paid, or offered to pay, all except such excess; Elkhart v. Wickwire, 121339. The operation of clause 43 of this section, which has relation to the construction of drains, sewers and cisterns, is neither limited nor widened by section 3163 (act of 1835), which concerns contracts for the grading and improvement of streets and the collection of assessments for the cost of such improvements; Elkhart v. Wickwire, 121-340. -- 3106a. City or town may contract for and use electric light. This and the four following sections constitute an act of the assembly of 1883 in relation to the lighting of cities and towns and furnishing the inhabitants there of with the electric light and other forms of light" etc. It confers authority on the common council of a city to contract for lighting the city or to purchase and operate the necessary plant and machinery. The act is constitutional both in respect of its title and its subject matter; Gas Co. v. Rushville, 121-212. 3106f. Use of natural gas License. This statute of 1887 requires that a general ordinance shall be adopted by municipal corporations, giving on equal terms substantially the same privileges to all companies. Wherefore a municipal corporation has no power to grant such a gas company the exclusive privilege of using its streets, and a company obtaining such a grant is bound to take notice that it is void. So a void grant of such an exclusive privilege, to use the streets of a town, to one company, or the refusal to grant a special privilege to another company will authorize the latter company to use the streets, and a town can not enjoin a natural gas company from using its streets, on the ground that it has conferred the exclusive right to their use on another company, although it may do so on the ground that the defendant corporation has not obtained a license so to do; Cit. Gas & M. Co. v. Elwood, 114-333. 3106g. Metropolitan police. This act providing for a metropolitan police in all cities of 29,000 or more inhabitants etc., is constitutional, valid and capable of enforcement -except in so far as, by this section, it makes a residence of three years in the city, in which he is appointed, next preceding his appointment a condition of a police commissioner's eligibility, and provides for the appointment of the officers named in section 2 (3106h) equally, from the two leading political parties. An act of March 7, 1889, ($ 7026) attempted to abolish the board of police created by this act, and to create a board of police and fire department, and provided that all laws and parts of laws coming in conflict with it, and especially this act, are repealed. Which act was held to be unconstitutional and void in the cases of Evansville v. State, ex rel., 118-426; State, ex rel. v. Denny, 118-449. The body of the act being void the repealing clause is also void and, except in so far as has been stated, this statute (§§ 3106g3106u) is in force and governs the manner of selecting and controlling the police power of the cities therein named. Where it is not clear that the legislature, by a repealing clause attached to an unconstitutional act, intended to repeal the former statute on the same subject, except on the supposition that the new act would take the place of the former one, the repealing clause falls with the act to which it is attached; State, ex rel. v. Blend, 121-515, modifying Meshmeier v. State, 11-482. 3106p. Interference with officer. An ordinance of the city of Indianapolis provided that any person who shall wrongfully interfere with any policeman or officer of said city, while making an arrest, shall be fined in any sum not exceeding $100." By this section the legislature intended to make it an offense for any person to interrupt or interfere with the board of police or police force in the discharge of their duties, or to prevent them, or either of them, from discharging their duties as defined in the act. Therefore, under section 1640, the city ordinance, above quoted, is ineffective and void. This section is embraced in the title of the act and is constitutional; Indianapolis v. Huegele, 115-587. 3151. Sewers - Drains - Cisterns. This is not an amendment of any other statute. It is a new and independent section, found in an act approved April 14, 1881. It is evident, however, that the latter clause of the section should be construed with and as a part of sections 3161-5, which have relation to the improvement of streets. The clause reads "and when, in its opinion, the construction of any sewer would be of public benefit to the city and necessary for the improvement of any street or streets, for the removal of surface or storm water therefrom, may, by a two-thirds vote, cause to be paid, out of the city treasury, such portion of the cost of the construction of such sewer as, in the opinion of said council, would be equitable and just;” Elkhart v. Wick wire, 121-338. 3155. By-laws - Penalties. The proper rule to adopt in respect to the penalty seems to be that it is definite enough to set limits to the amount of the fine that may be lawfully exacted, or the length of the imprisonment that may be inflicted, leaving it to the court or jury trying the cause to fix the penalty within the bounds prescribed, with the right to vary the amount, owing to the gravity of the offense. This is not obnoxious to any provision of the constitution; Bills v. Goshen, 117-228. * * * This section, "commonly called the general welfare clause," which empowers a common council to make other by-laws and ordinances necessary to carry out the objects of the corporation and to enforce the observance of all by-laws and ordinances by enacting penalties for their violation etc., does not authorize the imposition of a license for engaging in a lawful business; Shuman v. F. Wayne, 127-114. The state has not declared the business of a pawn broker unlawful, nor has it conferred on municipal corporations the power so to do. A city has no power to require a license of pawn brokers. Wherefore, a city ordinance making it unlawful for any person to carry on the business of a pawn broker without having first procured a license and making it the duty of every person engaged as a licensed pawn broker to keep, at his place of business, a book in which he shall enter a description of the personal property pledged, the time when it was received, noting any descriptive marks found on the same, with the name and residence of the person by whom it was left on deposit and providing that such book and such personal property shall be subject to the inspection of the police department of the city, is void, non obstante the fact that it is not in violation of the right of the people to be secure in their persons, houses, paperз and effects against unreasonable searches and seizures, as the business of a pawn broker is subject to the police power of the state; Shuman v. F. Wayne, 127-110. [See § 7019. ARTICLE 3-TAXATION. 3157. Equalization — Fixing rate - Refunding. Where a tax payer, in making his assessment list for taxation, gives notice of his indebtedness but does not enter it upon his list, and demands of the assessor the right to deduct from the value of national bank stock owned by him the amount of his bona fide indebtedness, which that officer refuses to allow, on the ground that such deduction is not authorized by law, and, afterward, makes a like demand on the city treasurer before paying his taxes, which is also refused, the assessment, to the extent of the deduction improperly denied, is erroneous, whether paid voluntarily or not. In such case the city is by this section required to refund the tax paid to the city collector which was not justly due to the city, and the city is not exonerated from the duty of refunding because the tax payer did not appear before the board of equalization and there attempt to have the erroneous assessment corrected; Indianapolis v. Vajen, 111–241. Where the platting and recording of land contiguous to a city is void and its annexation to the city by resolution of its council is, by reason thereof, also void, taxes assessed by the city on such land are illegal, and the amount thereof, there being no estoppel, may be recovered back, unless the bar of the statute of limitations is complete, the statute of six years beginning to run with each payment. A wife whose land has been platted, without her knowledge or consent, by her husband, is not estopped to dispute the validity of the plat, by the payment of city taxes and the execution of conveyances, without knowledge of the facts and under the belief that such transactions related to lots previously and lawfully platted by her, nor by a street improvement made by the license of the city, of which she had no knowledge and which was wholly made at the expense of the lot owners; Indianapolis v. Patterson, 112-345. 3161. Power over streets. By this section the common council of a city is given the exclusive control and power over the streets, alleys, highways and bridges within the |