The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1895-01-13

said pavement It Is not so solid as was con-
templated by said specification and the
danger Of settling, and will be thereby ma
terially injured.
paving company, instead OF using the paw
Ing cement composed of 10 per cent. refined
coal tar paving paving ee naend for d III ps' between ssHs
the blocks. used a mixture which Is cheaper
BY Sva 11isn,ar ~ th aaai ths b aaa a1's w % iSI'a Rase
been much lower. IL the mixture provided
therefrom, 1t is then averred that the omis-
sion TO flush with water and the use or
that provided in the specifications. was done
by said paving company by and with the
consent. connivance and collusion of Charles
G. Brown, the city engineer OF the city
of indianapolis, and wholly without the con-
sent OF plaintiffs: that said omission and
Company had Te csoam mnneanncee work 'n Under aV'iHts its
contract, and after all opportunity for re-
did not Know OF the same until the I'M
provement was completed and accepted.
II EVIDENCE.
The evidence shows that there was an
omission to flush with water, and that a
mixture called asphalt fiux was used for
filling between the blocks, instead of the
mixture specified in the contract. 1t fur
Their shows that this omission and substi-
tuition were with the consent of the en-
gineer, but it wholly fails to show oonni-
vance or collision on the part of the en-
gineer. with the paving company, to commit
a fraud, either upon the city or the property
holders. Whatever may be said as to the
wisdom OF these departures from the speci-
hcations, it cannot be said that the engineer
was guilty of any fraudulent purposes; nor
indeed, can 1t be said that there was nnedi-
the contrary, the evidence shows that the
engineer acted in good faith fully believing
that the deviations complained OF would
produce a better pavement.
It will be observed that the thirty-ninth
Of stone BY filing The Soids with sand an ,Fhe
being flushed into the interstices. was raked
in, and that the engineer insisted upon this
tnhe the paYin oxe com sTme oo] T6a reasons en sh Stated aff b 1T
the engineer were, that he had tried the
o oassars s Process ana q 1 foond line II 10 oe be the on b sst
method, and he and other witnesses have
testified that the sand could be worked
cause in hushins I the sand Would clog up
near the surface, leaving, the space be
t teT i seems tS r Hsseq. ihtsseeinf' into into m this.
that. while there was a physical departure
parture, so far as the accomplishment of
the object was concerned, and 1t may well
be doubted whether there was any de-
AS to the filling between the blocks. with
the asphalt fux, instead, of the paving ce-
Trinidad asphalt. as provided in the forty
first specification, the specification itself
conclusively, that the object of the filling
Is to prevent. the water from breaking
through into the subroadway. and the rea.
son given by the engineer for the use of
the asphalt fux was, that, after expert
menting with it, he came to the conclusion
that it would preserve more nearly a uni
form consistency through changes of
weather and temperature, and would make
a better feeling than that specified. Here,
sought was probably as effectually accom-.
fharR Ind hQan a literal nnnnnlionan with
the specification. Each of the deviations
slightly increased the cost to the paving
cost Of raking in the sand and putting in
the filling, was but a small portion of the
pavement as completed. and its conformity
as a whole to the provisions of the con-
tract. are considered, the deviations
in discussion would seem to be or that I'M
important character that the municipal
officers. charged with the supervision of
the work. would, in the exercise of a sound
discretion, have the right to make them.
This is especially the case when the evil
the pavement is quite as good as it would
have been if the departure had not oc-
CURED, and fails to show either actual or
probable injury to the property holders.
AUTHORITIES CITED.
In Elliott. On roads and streets, page
400, in speaking of the powers of officers
charged with making highways, it is said:
THE public welfare and the interests of
the land owners may often be promoted
by some change, and the officers who made
the original order ought to have some lati-
tude allowed them so they may be enabled
to rectify mistakes, or secure better re-
suits. The cardinal rule is that nothing
shall be permitted that will tend to do
harm to the property owners, but this sal
utary rule is obeyed rather than violated,
In permitting a change that is beneficial,
and it is not infringed by permitting
changes that work no harm to the citf-
zens."
In the case of the Board VS.. NewIan,
qS2 Ind, $50, is this language: TT has
Improvement is to be paid directly by prop
erty owners, the municipal authorities have
some discretion as to directing changes in
work, and. as shown in the cases. referred
to, this discretion must necessarily exist,
or the work become utterly valueless be-
cause of some unforeseen cause"
Under the city charter the Board of
Works is charged with the execution of
Burns Statutes, Sec. $780, The city engin-
eer is subject to the discretion of the
contract shows that the general supervision
Of fbe the sny Work In question 81 d,pact was con to
complained OF, and while the board, as
such, made no order in that behalf, the
embers knew of the changes, and with
full information respecting them. they, act
ing as a board, accepted the pavement and
made the final estimate.
Among the cases cited by plaintiffs to
sustain their contention for an Injunction
are the following: Osborne VS.. U. S. Bank,
8 Wheat, 1888; Burnett VS.. Cincinnati, 3 Ohio,
70; English VS.. Smock, "a Ind, lis. In the
first named case the law was held uncon-
stitutional, and it was decided that the
bank was entitled to maintain injunction
against the collection of the tax imposad
thereby. 1t was a law enacted by the
State of Ohio for the avowed purpose, said
Justice Marshall, of preventing the bank
from doing business in that State. 1t i'm
posed. a tax of $4,000 per year on each
branch doing business in the State, and
under it the Auditor of State had levied on
about 800, coo of the money of the bank.
1t was held that the bank having derived
its charter from the United States for the
purpose of carrying out the fiscal opera
lions of the general government, the law
of Ohio destroying its franchise right of
doing business in that State was a nudity.
The case in 3 Ohio proceeded also upon the
theory that the law or ordinance imposing
the tax for which sale of property was
about to be made was void. The case of
English ct al. VS.. Smock, decided
by our own Supreme Court,
places the right to injunctive relief
on the ground that the Commissioners of
Marion county were about to issue bonds of
a particular kind, which, in law, they had
no power to issue.
And the plaintiffs in the case at bar
broadly assert that, because of the devia-
tons in the performance of the contract,
and without respect to whether such de-