The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1894-01-19
MUST SERVE NOTICE
Judge Bakers Important Ruling
in Street Improvement Case.
Mere Publication of Ordinance Not Suf.
ficient-Applies to Town Councils
Fee and Salary Brief.

The Michigan Central RAILROAD Company
has won the first bout in its legal wrestling
match with the city of Hammond. Judge
Baker, in the federal court, yesterday after
room, temporarily enjoined the latter corpo-
ration. and Kinser & Son, contractors from
collecting $1,000 from the railroad COM
pany for the Improvement of Plummer
avenue, in Hammond The company owns a
frontage of a mile and fifth on the street
named, which was macadamized not long
ago. They resisted the collection OF the
special tax assessment on their property,
charging that they We're not given due no
tice OF the improvement and that the &C
ton OF the Council was therefore void.
Their motion was argued before Judge Ba-
ker, in chambers yesterday, Winston and
Meagher, of Chicago, and j. b. Collins of
Michigan City, appearing for the railroad
company, and John T. Beasley and John E.
Lamb. of Terre Haute, and Robert Gregory,
of Hammond, for the city.
In his decision sustaining the position of
the company, the judge began by saying
that 1t was a proposition well settled in
every judicial tribunal thatif the Council of
town or city proceeded within the scope
OF its jurisdiction it's action could not be
assailed. A mere irregularity or small error
Will not vitiate such action. The question
Is raised by the railroad company Whether
the Councils proceeding in this case is not
VOID by reason of the failure of that body
10 publish notice of it's intended action in
the newspapers ten days prior to letting
the contract. The statutes expressly provide
that such publication shall be made in the
case or improvements of this character
The attorneys for the city claim that the
publication of the ordinance itself is suffi-
clent notice, and that If such publication
Is made the law is complied with The
judge, after the above brief review of the
contentious of the attorneys in the case
said he entertained no doubt of the mean
ing or the statute in question. He thought
that councils were often prone to enter
upon public improvements indiscriminately
ana said the Legislature intended when they
maze THIS declaratory resolution law that
the members of a council should state under
oath that they belieV ed proposed improve
ment necessary. The law then provides
that all the interested parties shall be given
notice so they can resist the Improvement
II desirable. This Judge Baker regarded
as a material condition, and said that the
statute was mandatory and intended for the
protection of private interests The ques-
ton was, does the evidence show compliance
with this law? The judge held that it did
not ana that the Council passed the ordi-
nance either in ignorance Of the statute or
in contempt of it. Ten days notice is ex-
presSly provided by law, and that notice
shall name a time and place where proper
ty owners shall be given time to argue the
necessity or otherwise OF the improvements
To say that the mere publication of the
ordinance" concluded the Judge with moth
Ing more is a substantial compliance with
the statute, or even an attempt to comply
Is not so to my mind. My own Judgment
is that the Council started out either igno-
rant of the provisions of Section 2 Of this
statute. or with the deliberate purpose OF
disregarding it."
Judge Baker said there was a distinction
between the necessity of an Improvement
and a mere matter of taste or pi,olIc vani-
ty g,o he sg granted the preliminary Injunction
asked Tor and said 1T would remain in force
until the final hearing the date for which
he would announce later