The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1902-02-15
Mayor BooI<walter Places Much store
by City Attorney Joss's
Written Opinion.
HOT WATER HEATING CONTRACT
A FRANCHISE GRANTED TO MARION
COUNTY COMPANY.
An Amendment to the Original Petit
tion-Other Matters Before
the Works Board.

1t is probable that some definite under
standing will be reached this morning with
the County Commissioners by Mayor Book
walter as TO how much assistance the
county is to furnish the city in building the
Washington-street bridge and the other
bridges which Expert Condron declares to
be necessary The, mayor will meet with
the Commissioners this morning and will
endeavOr TO secure their agreement to
bridge-building proposition that will in
volve an outlay of anywhere from 100000
to $4,000 on the part of the county; the
exact amount depending on how many
bridges will be constructed at once and the
kind TO be recommended. The mayor de-
sires TO enter into an amicable agreement
with the county authorities, and desires,
if possible. to settle the matter without
even the friendly suit proposed.
The opinion as to how much authority
the county has in assisting the city to build
permanent structures of the kind in view,
presented yesterday to the mayor and the
Board of Works by City Attorney Joss.
will, the mayor believes, go far toward in
fluencing the commissioners toward help
ing the city. That opinion is too clear he
thinks to be disregarded. and has the
of Indiana.
GENERAL LAW NOT REPEALED.
The gist of Mr.. Joss's communication to
the city officials is that the Indianapolis
city charter does not repeal the general
law of 1885, which provides that counties
shall build all bridges costing more than
$500. Mr. Joss believes there is some doubt
as to the right of the city to compel the
bridges. The effect of the opinion of the
city attorney is simply this: that if the
County Commissioners are willing to enter
into an arrangement with the mayor and
the Board of Works toward paying an
equitable part of the cost of the
bridges the agreement would be perfectly
legal.
In the written opinion submitted by M
Joss he holds that previous to the legisla-
tive enactment of 1885 the absolute duty of
city bridge construction was upon the city,
but that after the passing of that law,
which the city charter does not repeal, the
county has full authority to build the
bridges and is given the discretionary
power of doing AS to the point which
has been made that the statute of 1855 is
repealed by implication" Mr.. Joss says:
lit is axiom in statutory construction
that repeats by implication are not favored
and where two statutes apparently cover
the same ground they shall be construed
TO harmonic with each other, so that both
statutes may stand In addition 10 the
power vested in the county under the act
of 1885, il has, Mr.. Joss holds, the I'M
doubted right TO contribute 10 the building
of a bridge in the city in any amount 1t
may see fit He here refers 10 the division
of the cost of the former bridge over White
river at Washington street, and points out
that $4,000 of the cost was obtained by pri-
vate subscription. $4,000 was paid by the
city and $4,000 by the county.
IMPERATIVE POWERS.
While Mr. Joss holds that the county
has discretionary power in coming to an
agreement of the kind necessary. it does
not necessarily follow that the discretion
airy powers which the county has might not
by the court be made into imperative pow
ers on the ground of extraordinary public
necessity On that topic he says THE
pivotal question as TO the right to COM
pei the Board of County Commissioners
of Marion county to build the bridge in
question depends upon whether the court
will hold that the circumstances OF this
case present such an extraordinary public
necessity that an imperative duty devolves
upon the board. In this connection il is
wise to remember that the city has inn
posed upon it the right and obligation TO
build and repair bridges in its Jurisdiction;
that the county also has a right TO build
this bridge.
Where two governmental bodies have
the same duty, can one mandate the other
to perform that duty? The county and
city treasures are largely filled by the
same taxpayers. who. after all. pay for
this bridge And IL is largely a question
as to which pocket the taxpayer will pay
IL out of. the city pocket or the county
pocket Assuming that there is an ex-
traordinary necessity for the construction
of the bridge i'm question, the court in a
mandamus proceeding would be compelled
TO answer the question to whether,
when the city was not in financial cOnd-
ton to build the best bridge. and the
county was. there would exist such
extraordinary public necessity for the
building of the hes; bridge possible. that an
imperative duty would rest upon the Board
OF Commissioners TO build the bridge be-
cause they alone were authorized and able
10 do il.
I'm view of the above conclusions. and
the dicta OF the Supreme Court that the
statute proceeds the idea of comfy
and good will between the two corporate
bodies 10 a large extent representatives
of the same citizens and taxpayers |
would suggest that the citys view of this
matter be thoroughly presented TO the
Board of County Commissioners, and that
together a solution be found that will result
i'm the building of the best bridge known TO
the art at this time.