The State, ex rel. The City of Columbus, v. Hauser et al.

edge, as we take pleasure in doing, the invaluable assistance we have received, in our examination of this cause, from the able and exhaustive briefs of the learned counsel of the respective parties.

1. We may remark in the outset, as applicable to both paragraphs of the complaint remaining in the record, that the treasurer's bond in suit is the foundation of this action. The copy of this bond, filed with the complaint, is therefore properly in the record. But the copies of certain ordinances of the city of Columbus, which were filed with the complaint as exhibits, were, in no proper sense, the foundation of the action.

These copies of ordinances did not, therefore, becɔme parts of the record, and can not be considered in determining the sufficiency of either of the said paragraphs of the complaint, except in so far as the contents of the said ordinances may be stated and set forth in the body of the paragraph. This is now the settled doctrine in this State. 2 R. S. 1876, p. 73, sec. 78; Brooks v. Harris, 41 Ind. 390; Trueblood v. Hollingsworth, 48 Ind. 537; and Wilson v. Vance, 55 Ind. 584.

In the first paragraph of the appellant's complaint, it is alleged, as a breach of the bond in suit, that, on the 27th day of September, 1870, the appellant's relator duly passed, by a two-thirds vote of its common council, “An ordinance to provide for the construction of water-works," which ordinance duly authorized the treasurer of said city to negotiate and sell the bonds of said city, to the amount of fifty thousand dollars, for the relator's use and benefit; and that, on the 7th day of February, 1871, the appellee Hauser, as treasurer of said city, did negotiate and sell fifty thousand dollars of said bonds, and received therefor, for the use of said city and as its treasurer, fifty thousand dollars in money; and that, on June 26th, 1871, the common council of said city passed an ordinance supplemental to said

The State, ex rel. The City of Columbus, v. Hauser et al.

ordinance to provide for the construction of water-works, which supplemental ordinance duly authorized the treasurer of said city to negotiate and sell the bonds of said city, to the amount of fifteen thousand dollars, for the use of said city; that, on the 3d day of July, 1871, the appellee Hauser, as such city treasurer, negotiated and sold said city bonds, to said amount of fifteen thousand dollars, and received therefor, for the use of said city, as such city treasurer, fifteen thousand and seventy-five dollars in money; that afterward, on the day of May, 1873,

when the term of office of the appellee Hauser, as such city treasurer, had expired by limitation, and his successor in said office had been duly elected and qualified, the said appellee Hauser had not faithfully and honestly performed the duties of his said office, and had not paid over to his successor all moneys received by him, as such treasurer, according to law and the ordinances of said city, in this That he had failed and refused to pay over to his successor in office, or to any one authorized to receive the same, the sum of five thousand dollars of the moneys so received by him, as city treasurer, from the said sale by him of the first issue of said city bonds, and the said sum of fifteen thousand and seventy-five dollars so received by him, as such treasurer, as the entire proceeds of the second issue of said bonds, or any part thereof.

At the time of the adoption of the first ordinance, mentioned in the first paragraph of the appellant's complaint, by the common council of the city of Columbus, to wit, on the 27th day of September, 1870, the only authority for the passage of said ordinance was the twenty-sixth clause of section 53 of the general law for the incorporation of cities, approved March 14th, 1867.

It does not appear from the averments of the complaint, that the city of Columbus was incorporated under the general law for the incorporation of cities; but, as the contrary

The State, ex rel. The City of Columbus, v. Hauser et al.

does not appear, we assume that it was so incorporated. Lowrey v. The City of Delphi, 55 Ind. 250.

In this clause 26 of section 53 of such general law, it is provided that the common council of any such city shall have the power to enforce ordinances, "To construct and establish works for furnishing the city with wholesome water, and for the purpose of drainage of such city may go beyond the city limits and condemn lands and materials and exercise full jurisdiction, and all the necessary power therefor, or the common council may authorize any incorporated company or association to construct such works, and in such case the city may become part stockholder in any such company or association." 1 R. S. 1876, p. 291.

It is clear, we think, that this provision did not authorize the common council of the city of Columbus, at the time of the adoption of its first ordinance, to issue, negotiate and sell the bonds of said city, for the purpose of raising money for the construction of the water-works provided for in said ordinance.

A municipal corporation can not, without express legislative authority, issue, negotiate and sell its corporate bonds, for any purpose. The City of Aurora v. West, 22

Ind. 88.

After the adoption of said first ordinance, and before the negotiation and sale of any of the city bonds provided for in said ordinance, as alleged in said complaint, to wit, on January 20th, 1871, an act was approved to legalize the bonds of cities issued to aid in the construction of waterworks, and the sale and hypothecation of such bonds, etc. Session Acts 1871, p. 8.

The title of this act is more comprehensive than the act itself; while the preamble of the act, by its terms, is limited solely to the city of Laporte. This act contains two sections, as follows:

The State, ex rel. The City of Columbus, v. Hauser et al.

"Section 1. Be it enacted by the General Assembly of the State of Indiana, That all ordinances, resolutions and orders heretofore passed by the common council of said city of Laporte, or any city in this State for issuing, selling, pledging or hypothecating the bonds of said city, to aid in the construction of water-works, and each and every one of them are hereby legalized and made valid; and all bonds which have been issued, sold, pledged or hypothecated under or in pursuance of any such ordinances, resolutions or orders of such common council, and each and every one of them are hereby legalized and made valid; and the common council is hereby authorized to issue, and sell all such bonds of said city, as in their judgment, may be necessary to carry out and perform any and all contracts heretofore made in and about the construction of such water-works, and to fully complete said works."

Section 2 of said act contained an emergency clause, and a proviso which has no bearing on any of the questions in this case.

It can not be questioned, we think, that the provisions of said act legalized and made valid the ordinance theretofore passed by the common council of the city of Columbus for the issue, sale, pledge or hypothecation of the bonds of said city, to aid in the construction of waterworks; nor can it be questioned, that the bonds of said city which had been issued, sold, pledged or hypothecated, under and in pursuance of said ordinance, were, by said act, legalized and made valid.

As the object of said act was to enable such cities as had, under mistaken views of their powers, entered into contracts for the construction of water-works before the passage of said act, to fully complete said works, it seems to us that the act should be construed as if it provided, in express terms, that the common council of any such city should be authorized to issue and sell all such bonds of

The Stute, ex rel. The City of Columbus, v. Hauser et al.

said city as, in their judgment, might be necessary to carry out such contracts and to complete such water-works This was the construction given to the act in question by this court, in the case of Daily v. The City of Columbus, 49 Ind. 169, and we think it is the proper construction. It follows, therefore, that both the issues of the bonds of the city of Columbus, set out and described in the first paragraph of the appellant's complaint, were made legal and valid by the provisions of the act above quoted, and that the common council of said city were thereby fully authorized to negotiate and sell all such bonds of said city, as in their judgment might be necessary to carry out the previous contracts for the construction of the water-works, and to complete said works.

It is claimed by the appellees, that it was no part of the official duty of the appellee Hauser, as treasurer of the city of Columbus, to negotiate and sell the water-works bonds of said city; and, in this position, we think that the appellees are clearly right. There are several provisions of the general law for the incorporation of cities, which indicate and define the duties of the treasurers of cities. organized and existing under such law. Thus, in section 31 of said act, it is provided, that "The treasurer shall receive all moneys, notes, bonds and orders belonging to the city, and keep an accurate account of the amounts received and paid out by him, and no money shall be paid out of the treasury by him, except upon an order signed by the mayor, or presiding officer of the common council, and countersigned by the clerk." 1 R. S. 1876, p. 281.

Again, in section 32 of the same act, it is provided, that "All moneys due to or collected for such city on any account whatever, shall be paid to the city treasurer," etc. 1 R. S. 1876, supra.

In the last clause or sentence of section 33 of the same act, it is further provided, that the city treasurer "shall