The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-08-07
TO HEAD OFF THE BLOCK
INJUNCTION SUIT BY A CAPITOL.
AVENUE PROPERTY OWNER.
Right of demonstrators to withdraw
Their N~ames-Bids Received for
Stretch Above FAN Creek.

Charles o. wheatcraft, one of the resi-
don't property owners who are opposing the
Improvement of Capitol avenue between
Fall creek and Thirty-fourth street with
block pavement, began a suit to enjoin the
Board of Public Works from proceeding
with the Improvement in the Circuit Court
yesterday morning. Afterward Deputy
City Attorney Bell filed an answer. Brief
arguments were heard by the court, who
asked for additional afidavits. together
with citations. Judge Allen announced that
he would try to decide the case Monday
morning.
The whole question turns on the right Of
demonstrators to withdraw their names
within the ten days period during which
remonstrances may be filed after final
action is taken by the board. Pierre Gray.
one of Mr.. Wheatcraft's attorneys. raised
this question with the Board of Works
several days ago. Mr.. Gray held that once
q man had placed his name on a remon-
STRANGE he had gone on record and could
not withdraw ii. In this particular instance
more than half the resident property own
ers had signed the reInonstrance, but be-
fore the period expired enough of them had
Withdrawn to reduce the number to less
than hall. Mr.. Gray's written contention
was sent to Mr.. Bell. Yesterday he sent
the board an opinion. in which he said.
Il have considered your communication
OF the 9th inst, together with Section Z Of
the opinion of Mr.. Pierre GRAY relative To-
the rights of demonstrators TO withdraw
their names from circumstances subse-
queht TO the Ming Of such remonstrance,
by the same. This question has been con-
sidered by our Supreme Court in connec-
ton with remonstrances filed under what Is
commonly known as the Nicholson law.
That law provided that If a majority of the
legal voters of the township or ward filed a
remonstrance against the granting of a
license to a certain applicant TO sell in
toxicating liquors three days before the
regular session of the county commissions
fused.
The question considered in the case OF
the State VS.. Gerhardt. 145 Indiana, 473.
was, whether or not the signers of that
remonstrance had q right to withdraw
their names during the three days period
prior to the session of the commissioners.
The court, in considering the same. saws:
Until the beginning of this three days Pc
ROD, whether the remonstrance has been
must be deemed to have the absolute right
by some affirmative act of his own, to with
draw his name from such remonstrance.
But II this right is not exercised prior to
the beginning of the first day of this three
days period, it no longer exists
The same reasoning applies to the ten
days period given resident property owners
to demonstrate against contemplated i'm
p~rovements. If the remonstrance has been
placed on file before the lapse Of the ten
days. any individual signing the same,
would have the right to withdraw his name
therefrom. On the other hand. during these
ten days, any other resident property own
er would AVE the right to come in and add
his name to those already upon the remon-
STRANGE. The purpose of the statute under
the rule as laid down by our Supreme
Court, in the consideration of a similar
statute, is to give to the resident property
owners the entire ten days to demonstrate
or not, as they see fit, and during that ten
days each owner has a right to add to or
to withdraw his name from any remon-
other words, the board considers the re-
mOnStrance as it exists at. the expiration
of the ten days period.
ut is, therefore, my opinion that the po-
sition assumed by Mr.. Gray in his COM
munication, cannot be sustained, and your
board should proceed with the considera-
ton of this remonstrance as it existed at
the end of this period. I return herewith
the communication received by you from
Mr.. Gray"
Fortified with Mr.. Bells opinion, the
board proceeded to open bids for the work.
but after the Injunction was filed decided
to defer awarding the contract. The bids
We're as follows: 3H4
Mansfield & Allen, grout filing, S7.49 a
lineal foot. each side; tar filing, 20 cents
a foot additional; M. NJ. Defrees, tar or
cement filling, 1922; Germo-K entucky Rock
Asphalt Company, any kim of filing, 1854;
Browder q Shower, any kind of filling. $6.4S:
Capitol Paving and Construction Company,
cement filling, So; asphalt cement filling.
Sc. 81; Daniel Foley, combined curb and
Portland filling. Sc; stratited curb and as
phalt filing, $6.15; cement filing, $6.10; City
filing. IS; grout filling, $6.05; Hoosier Con-
struction Company, asphalt cement grout-
ing and cement curb, $3.50; Portland cement
g%routing and cement curb, 1924.