ing the removal of the walk, and its recon-is given exclusive power over the streets. struction, and in failing to remove obstruc- Section 8961, Burns 1914. It is evident, tions, were acting as agents of the abutting therefore, that in improving and caring for owners and not for the city. This point has its streets the city, and not the abutting in effect been passed on by this court in the owners, is the principal. The duty to imcase of City of Valparaiso v. Spaith (1905) prove the streets is imposed on it and it in 166 Ind. 14, 76 N. E. 514, 8 Ann. Cas. 1021, turn may tax the abutting owners for the where it was said: cost of the improvement. "The entry of the order by the city council that the improvement be made had the effect of constituting the board of commissioners the agent of the city in the improvement of that part of the highway within the city limits." See, also, State v. Kohnke (1903) 109 La. 838, 33 South. 793; 1 Dillon, Munic. Corp. P. 153; 11 Dillon, Munic. Corp. p. 1255. [2] It is also contended that the demurrer should have been sustained for the reason that the contract and statute under which the improvement was made both specifically shall be paid by the abutting owners by asprovide that the cost of the improvement sessment, and that therefore the corporation It is further to be noted that the statute costs arising out of the improvement itself, is not liable as alleged. This is true of those under which the improvement was brought but the position of appellees in their comexpressly required the contract to be entered plaint is that appellant violated the terms of into between the city and the contractor. the contract, and for that act it is liable to Indeed the authority to improve the street appellees in damages, measured by the cost eminates, under the wording of the statute, of the extra work they were compelled to from the city. The property owners have perform. This position of appellees is corremonstrance rights only. They in no way rect. The cost of improvements is to be disauthorize the city to enter into relations with tinguished from the damage done to appelcontractors on their behalf so as to bind them lees by the failure of the appellant to do as to all acts done by the municipality or its its duty under the contract. Appellees alagents during the progress of the improve-lege that they were compelled to replace ment. Acts 1905, pp. 404-406. The capacity in which a city enters into contracts for improvements of its streets is not the same as that of purely governmental agencies such as counties and townships. A municipal corporation exercises other functions than those granted to it or imposed upon it as an agent 219; City of Dunkirk v. Wallace (1897) 19 We conclude, therefore, that the position of appellant in these particulars is not well taken, and the demurrer to the complaint properly overruled. portions of the walk because of the failure of the city to do its duty. It is therefore an action to recover for breach of the contract, and not for extra compensation under the contract. For this breach of contract appellant is liable in damages. Gearty v. Mayor of New York, 171 N. Y. 61, 63 N. E. 804; of the state. It exercises some rights as a corporation as such, and in exercising these O'Neill v. Milwaukee, 121 Wis. 32, 98 N. W. rights it is in general responsible as other 963; Wren v. City of Indianapolis, 96 Ind. corporations for injuries and damages resulting from such acts. There is some confusion as to the capacity in which a city acts in the care of the streets. In a few states it has been held that in the absence of special statutory duty imposed on a municipality there is no liability for failure to keep streets in repair. Winbigler v. Los Angeles, 45 Cal. 36; Arkadelphia v. Windham, 49 Ark. 139, 4 S. W. 450, 4 Am. St. Rep. 32; Young v. City Council, etc., 20 S. C. 116, 47 Am. Rep. 827; Detroit v. Blackeby, 21 Mich. 84, 4 Am. Rep. 450; Hill v. City of Boston, 122 Mass. 344, 23 Am. Rep. 332. The conclusion in these states is based on the theory that the duty to keep streets in repair is a public duty rather than that of the corporation as such. But in the great majority of states, including our own, the opposite conclusion as to the nature of the duty is reached, and in consequence an opposite conclusion as to the liability of the city for failure to keep the streets in repair. Higert v. City of "A provision in the contract that work shall Greencastle (1873) 43 Ind. 574; Glantz v. be done to the satisfaction of the city officials City of South Bend, 106 Ind. 305, 6 N. E. 632, that work not done to their satisfaction shall under whose direction it is to be performed, and and cases there cited. For a list of cases be made good by the contractor, does not jusfrom other states to the same effect, see 30 tify the city official in acting arbitrarily, or imAm. St. Rep. 385, note; Dillon, Munic. Corp. properly exercising the power conferred upon them by the contract. If these powers are ex(5th Ed.) § 165. ercised arbitrarily, or improperly, the contractor Moreover, by our statute the municipality has either of two remedies. He may stop work [3] Although it was not assigned as one of the reasons for sustaining the demurrer to the complaint, it is insisted on by appellant, under the assignments of error in giving certain instruction and in its motion for a new trial, that the complaint for damages was not the proper remedy under the facts alleged, for the reason that it was the duty of appellees to bring proceedings in mandamus to compel the proper officials of appellant city to accept the walks as first completed. In Dillon on Municipal Corporations, § 813, p. 1231, that eminent authority states the rule as follows: upon receiving an order to remove a portion of bond, the city cannot be heard to set up any his work and do it over again, and stand upon irregularity in the execution of the contract his contention that the work is properly done, and bring an action to recover for labor and and bond to which it was a party and, as materials furnished and performed, under the alleged in the reply, for which it was to contract, and for the loss of his prospective blame. It was its duty to either accept or profits, or he may do the work over as required reject the bid of appellees at the time, and and sue to recover damages on the ground that he has been unlawfully compelled to do the not after it had received all the benefits for work a second time." which the contract and bond provide. Wren v. City of Indianapolis (1884) 96 Ind. 206, 217-218; City of New Albany v. Iron Substructure Co., 141 Ind. 500, 507, 40 N. E. 44; Moore v. Mayor, etc., 73 N. Y. 238, 29 Am. Rep. 134;. Hallock v. Lebanon, 215 Pa. 1, 64 Atl. 362. See, generally, 28 Cyc. p. 674; 2 Dillon, Munic. Corp. § 793, and note, where cases are cited; McQuillin, Munic. Corp. §§ 1906, 1907, 1916, 1920. And on page 1254 of the same work it is said: "But mandamus may not be the only remedy of the contractor against the city if it has plainly violated its duty towards the contractor by unreasonably and persistently neglecting or re fusing to make and collect the assessment or to make a new assessment. In support of this declaration he cites the following authority: Gearty v. Mayor, etc., of New York, 171 N. Y. 61, 63 N. E. 804; Lentilhon v. New York, 102 App. Div. 548, 92 N. Y. Supp. 897, affirmed in 185 N. Y. 549, 77 N. E. 1190; O'Neill v. Milwaukee, 121 Wis. 32, 98 N. W. 963. This seems to us to be the correct state ment of the law. It is in harmony with the law of private corporations and persons, and we see no reason why it should not apply with equal force to municipal corporations with respect to acts done in their corporate capacity. Roehm v. Horst (1899) 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953. [4] Appellant also contends that the demurrer to appellee's reply was improperly overruled. It is earnestly insisted upon that the failure to enter into a written contract and file a bond as required by statute (Acts 1905, § 265, p. 406), prior to the date of the acts complained of, is a bar to a recovery, the facts set up in reply notwithstanding. The statute provides: "Upon the acceptance of any such bid the successful bidder shall enter into a written contract for the faithful execution of such work and shall give bond * * to the approval of said common council or board of trustees to secure the performance of such contract and to hold such city or town harmless from the payment of any debt or damage by the reason of the act of such contractor and to secure the payment of all claims for labor and material used in such improvement, which bond shall be in lieu of any and all other bonds heretofore provided for by any other law or laws of this state. An order, on objection of county auditor to an administrator's final report, that the estate port be not approved, and that the administrawas indebted for omitted taxes, that the retor be not discharged, and that the auditor prosecute the claim for taxes, is not a "final judgment," from which appeal will lie, within Burns' Ann. St. 1914, § 671. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 444-447; Dec. Dig. 77(2).' For other definitions, see Words and Phrases, First and Second Series, Final Judgment.] Appeal from Probate Court, Marion County; Mahlon E. Bash, Judge. Charles F. Hughes filed final report as administrator, to which William T. Patton, auditor of Marion county, filed objection. From an order the administrator appeals. Appeal dismissed. Bachelder & Bachelder, of Indianapolis, for appellant. Frank T. Brown and Jos. W. Hutchinson, both of Indianapolis, for appellee. It will be noted that the bond is to secure the performance of the contract, and to save the city harmless from the acts of the contractors. As alleged, the contract is performed. That consideration is disposed of. There is no indication that there was any harm done to the city by acts of appellees, and if there had been, the execution of the bond and contract at a later date with date of execu- HOTTEL, J. On January 12, 1914, Charles tion recited as of the original date of the F. Hughes, administrator, de bonis non, of letting of the contract, would furnish as the estate of Lovina Streight, deceased, filed adequate guaranty against wrong or injury his final report, in which he showed a total as a bond and contract executed at the time. of receipts and disbursements, leaving a bal Moreover, after having accepted the work ance of $19,017.16, of which amount he repreand consequent benefits of the contract and sented that $5,705.14 should be paid to certain For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes attorneys named, and the balance distributed | Pfeiffer v. Crane, Gd'n, 89 Ind. 485; Thieamong certain named heirs, in the amounts baud v. Dufour, 57 Ind. 598; Wood v. Wood, therein set out. On February 7, 1914, William T. Patton, auditor of Marion county, filed objection to this report, in which he alleged that: "Said estate is indebted to the state of Indiana, county of Marion, city of Indianapolis, and Center township, for omitted taxes which said Lovina Streight omitted and failed to return on her schedule of taxes to the township assessor or the proper authorities as follows." Here follows certain notes owned by deceased which she had omitted from her schedule of taxes. Notice to the administrator of such omission, and his failure to appear before such auditor, is alleged, with a statement that such auditor is credibly informed and believes that said estate owes taxes amounting to $1,181.69, and a prayer that the court withhold the approval of said report until steps could be effected whereby such taxes could be collected off of said es tate. Thereupon, to wit, on February 13, 1914, the administrator filed a report, showing a distribution of the balance in his hands to the persons shown in his first report to be entitled thereto, accompanied by the receipts of such distributees. On March 27, such administrator filed a demurrer to said exceptions to his report, which was overruled. On April 7, 1914, said matter was submitted to the court for trial, with a request by said administrator for a special finding of facts and conclusions of law. 51 Ind. 141; Goodwin v. Goodwin, 48 Ind. 584; Angevine v. Ward, 66 Ind. 460; Leach v. Webb, 113 N. E. 311; Mak-Saw-Ba Club v. Coffin, 169 Ind. 204, 210-213, 82 N. E. 461, and cases there cited. The appeal is therefore dismissed. (63 Ind. App. 151) CRITTENBERGER, Auditor, v. STATE SAVINGS & TRUST CO. OF MARION COUNTY et al. (No. 9718.) (Appellate Court of Indiana, Division No. 2. 1. APPEAL AND ERROR 1 RIGHT OF AP There is no vested right of appeal, and such right is the subject of legislative discretion, to be given or withheld as the General Assembly sees fit. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1-4; Dec. Dig. 1.] 2. TAXATION 900(5) — INHERITANCE TAXAPPEAL. Appeal from judgment of a probate court on the rehearing and redetermination of an inheritance tax under the inheritance tax law (Acts 1913, c. 47) may be taken under Burns' Ann. St. 1914, § 2977, providing that any person, considering himself aggrieved by any decision of any matter connected with a decedent's estate, may appeal to the Supreme Court; that section 15, subd. 3, of the inheritance tax law provides for rehearing of the determination of such tax, not barring appeal. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 1723; Dec. Dig. 900(5).] 3. APPEAL AND ERROR 374(4) APPEAL BOND-INHERITANCE TAX DETERMINATION. In its finding, the court found the condition of the estate to be substantially as set out in the administrator's report, and also found that the deceased omitted from her Under Burns' Ann. St. 1914, § 9270, providschedule of taxes in the years named the ing that in civil suits by the state in its own notes set out in the exceptions to said re- name, or in its name on the relation of the Atport, and that their amount in value had not torney General, or on the relation of any state been placed on the tax duplicate of Marion board, etc., any relief to which the state is entitled therein may be obtained without filing any county as omitted property of the deceased, bond for costs or damages, no bond is required and that the final report of said administra- on appeal by the state in a proceeding to rehear tor had never been approved. Upon this and redetermine an inheritance tax, although finding the court stated, as a conclusion of brought in the name of the auditor of the state, where the trial court and the parties treated it law, that said final report should not be ap-as an action brought, and it was as a matter of proved or the administrator discharged; fact, prosecuted, by the Attorney General. that the estate should be kept open, and said [Ed. Note.-For other cases, see Appeal and auditor be permitted to prosecute said claim Error, Cent. Dig. §§ 2008-2010; Dec. Dig. 374(4).] for taxes. Upon such finding and conclusion of law, the court entered the following order, viz.: "It is thereupon adjudged and decreed by the court that the report in final settlement of said estate filed by the administrator, de bonis non, be not approved and that said administrator be not discharged, and that William T. Patton, auditor of Marion county, Indiana, prosecute the claim for taxes on the personal estate described in the exceptions to report in final settlement." From this order this appeal is prosecuted. The order indicated is not a final judgment from which an appeal will lie within the meaning of section 671, Burns' 1914, as construed by the Supreme Court and this court. 4. APPEAL AND ERROR 339(1)-TIME FOR APPEAL. Where no bond is required to be given by a party appealing under Burns' Ann. St. 1914, § 2977, as to appeals from decisions upon matters connected with a decedent's estate, the appellant has 120 days from the date of the decision within which to perfect his appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1883; Dec. Dig. 339(1).] Appeal from Probate Court, Marion County; Mahlon E. Bash, Judge. Action by Dale J. Crittenberger, Auditor rc other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tiff appeals, and defendants move to dis- | Ind. 448, 82 N. E. 1030; City of Indianapolis miss the appeal. Motion overruled. Evan B. Stotsenburg, of New Albany, and Charles J. Orbison, of Indianapolis, for appellant. Pickens, Cox & Conder, of Indianapolis, for appellees. IBACH, J. Appellant appeals from a judgment rendered in the matter of the rehearing and redetermination of the inheritance tax in the estate of William L. Higgins, deceased. v. L. C. Thompson Mfg. Co., 40 Ind. App. 535, 81 N. E. 1156, 82 N. E. 540; State v. RockWood, 159 Ind. 94, 95, 64 N. E. 592, and cases cited. [2] An analysis of the act in question and a study of its provisions as a whole indicate that the Legislature intended to make the ascertainment and collection of inheritance tax a part of our probate law, and to vest our county courts with probate jurisdiction over such matters. Said act provides, among other things, that the value of the estate and After the filing of the transcript in this the amount of tax to which it is liable shall court, and before the filing of appellant's be determined by the court after notice and brief, appellees, other than Charles Latham, hearing: that such tax shall be a lien on the whose death is suggested, have filed a motion property transferred until paid, and the adto dismiss the appeal for each of the follow-ministrator shall be personally liable thereing reasons: for; that no administrator shall be entitled to a final accounting until he produces a receipt for its payment; that he shall have power to sell the property of his decedent to pay such tax; that he shall not deliver, or be compelled to deliver, any specific legacy or property subject to such tax to any person until he shall have collected the tax thereon; that in the collection of unpaid taxes the procedure shall conform, as near as may be, to the provisions of the law governing probate practice of this state; that the powers conferred on the circuit court shall be conferred "(1) No right of appeal is by law provided from the judgment of the probate court of Marion county, Ind., set forth in the transcript of the record in the above-entitled cause, and no appeal from any such judgment of the probate court of Marion county, Ind., is permitted by law. (2) No bond was filed with the clerk of Marion county, Ind., or with the clerk of the probate court of Marion county, Ind., as provided by law, as a condition upon which an appeal may be had from a judgment such as is disclosed in the said transcript of record, it being a judgment growing out of a matter connected with a decedent's estate. (3) No appeal bond was filed with any officer or person in connection with the said attempted appeal within 30 days after the decision complained of was made. (4) on certain other courts having jurisdiction No transcript was filed in the office of the clerk in probate matters. With this construction of this court within 90 days after the filing of an it follows that the right of appeal, if not exappeal bond with any officer or person whatso-pressly denied by the act itself, is provided ever in connection with an attempted appeal from the decision and judgment of the probate court of Marion county disclosed in the transcript of record, in the above-entitled cause, as is by law provided as a condition upon which appeals are allowed in decisions of the probate court of Marion county, growing out of any matter connected with a decedent's estate, and in fact no appeal bond has been, at any time, filed in connection with this attempted appeal, or any attempted appeal from the decision and judgment of the probate court of Marion county, disclosed in the transcript in the above-entitled cause." (Our italics.) by section 2977, Burns 1914, which reads in part as follows: "Any person considering himself aggrieved by any decision of a circuit court, or judge thereof in vacation, growing out of any matter connected with a decedent's estate, may prosecute an appeal to the Supreme Court," etc. As tending to sustain our conclusion, see Bennett v. Bennett, 102 Ind. 86, 89, 1 N. E. 199; Baker v. Edwards, 156 Ind. 53, 59 N. E. 174; Rogers v. State, 26 Ind. App. 144, 59 N. E. 334; Holderman v. Wood, 34 Ind. App. 519, 73 N. E. 199; Vail v. Page, 175 Ind. 126, 130, 93 N. E. 705, and cases cited. such act, and is as follows: [1] The act in question (Acts 1913, p. 79 et seq.) contains no express provisions authorizing an appeal. Proceedings had under Appellees, while contending that no right of the provisions of such act are in the nature appeal is created by section 2977, supra, also of special proceedings. It is thoroughly set- contend that the act contains language which tled that there is no vested right of appeal, practically forbids an appeal. The language and that such right is the subject of legisla-referred to is found in section 15, subd. 3, of tive discretion, to be given or withheld as the General Assembly sees fit. It has also been held that the general right of appeal allowed from final judgments does not apply to special proceedings, and that statutory provisions for the improvement of streets and other highways, and for the assessment of the costs thereof against the property benefited are special in character, and, unless expressly granted, no appeal lies from any action or decision of the board or tribunal conducting such proceedings. Stockton v. Yoeman, 179 Ind. 61, 65, 66, 100 N. E. 2; Indianapolis Union R. Co. v. Waddington, 169 "The auditor of state, county treasurer, or any person dissatisfied with the appraisement or assessment and determination of such tax may apply for a rehearing thereof before the circuit court within sixty days from the fixing, assessing and determination of the tax by the circuit court as herein provided on filing a written notice which shall state the grounds of the application for rehearing. The rehearing shall be upon the records, proceedings and proofs had and taken on the hearings as herein provided as a new trial shall not be had or granted unless specially ordered by the court." The language indicated has reference to the procedure in the trial court, and not to 3. TELEGRAPHS AND TELEPHONES 15(2)— DUTY OF the right of appeal. The act contains no ex- he fell over a guy wire, where the complaint press denial of the right of appeal. averred that defendant had erected its poles [3] The remaining reasons on which a dis-officer in the city, and was walking on the street and wires in a street, that plaintiff was a police missal is urged may be treated together. in the performance of his duties, the averments They in effect deny that any appeal has been that the wire was "carelessly, negligently, and perfected. It is urged that appellant has not unlawfully constructed and built in said highway, and has been carelessly, negligently, and complied with section 2977, supra, by failing unlawfully maintained," by defendant, sufficientto file an appeal bond. While it may be con- ly charged a negligent violation of its duty to ceded that this action was not brought in use reasonable care to maintain its guy wire so that it would not endanger the use of the street the form of the "State of Indiana" or the by the public, including plaintiff, there being "State of Indiana, on the relation of the At- nothing shown by the complaint destroying the torney General" yet the trial court and both effect of such general allegations of negligence. the parties treated it as an action so brought, [Ed. Note. For other cases, see Telegraphs and it was, as a matter of fact, prosecuted by and Telephones, Cent. Dig. § 13; Dec. Dig. 20(4).] the Attorney General, so we are of the opinion that the action falls within the provisions of section 9270, Burns 1914, and an appeal bond was not required. Furthermore, by statute the state auditor is given authority to represent the state in these proceedings before the trial court, and we have held that the right of appeal existed in such cases. It would therefore be entirely foreign to the spirit of our law to hold that the state auditor, representing the state in an effort to obtain taxes, should be required to furnish a bond before the state's appeal could be per-4. fected. See 3 C. J. 1122, § 1161; Ewbank's Manual (2d Ed.) § 9; Humphreys v. State, 70 Ohio St. 67, 70 N. E. 957, 65 L. R. A. 776, 101 Am. St. Rep. 888, 1 Ann. Cas. 233; People v. Sholem, 238 Ill. 203, 87 N. E. 390. [4] Where no bond is required to be given by a party appealing under section 2977, supra, the appellant has 120 days from the date of the decision within which to perfect his appeal. The judgment in this case was rendered May 29, 1916, and the transcript of the record filed in this court on August 16, 1916, within the 120 days. Motion to dismiss appeal overruled. (64 Ind. App. 136) LAFAYETTE TELEPHONE CO. v. CUN- The fact that a police officer, when injured by falling over a telephone company's guy wire, was outside the usually traveled part of the highway, while pertinent to the question whether the officer was negligent, did not discharge the telephone company of its duty to use reasonable care not to render hazardous the use of the highway. [Ed. Note.-For other cases, see Telegraphs TELEGRAPHS AND TELEPHONES 20(7)— way at night, was called by his superior officer [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. 20(7).] 15(2)— 5. TELEGRAPHS AND TELEPHONES Portions of a sidewalk devoted by the proper municipal officers to the use of telephone poles and guy wires, in the absence of an ordinance showing the contrary, are still a part of the street which the pedestrian may use for travel, and any authority or license to use such part of the street for the poles and wires must be exercised with reference to the possible use thereof by pedestrians, and the licensee to maintain telephone poles is under duty to use ordinary care not to expose pedestrians to unnecessary (Appellate Court of Indiana, Division No. 1. danger in using such portion of the street. [Ed. Note. For other cases, see Telegraphs 6. TELEGRAPHS AND TELEPHONES 15(5)— Though a telephone company may have the right to occupy a highway with its poles, if it secures them in the highway with guy wires, its duty is to use reasonable care to so erect That a police officer went upon a grassplat and maintain such wires as not to endanger between curb and sidewalk to cross the street public travel or the safety of individuals in the at a point where there was no crosswalk, and so reasonable and ordinary use of the highway. fell over a telephone company's guy wire, did [Ed. Note.-For other cases, see Telegraphs not relieve the telephone company of responand Telephones, Cent. Dig. § 9; Dec. Dig.sibility, to him, since a pedestrian is not re15(2).] 2. TELEGRAPHS AND TELEPHONES 20(4)— INJURIES FROM GUY WIRE- COMPLAINT GENERAL AVERMENTS OF NEGLIGENCE. - stricted to crosswalks or street intersections in crossing a street, but may cross at any place, and is not necessarily negligent because he does so. [Ed. Note.-For other cases, see Telegraphs In an action by a police officer against a and Telephones, Cent. Dig. § 9; Dec. Dig. telephone company for injuries received when 15(5).] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |