affirming injunction prohibiting enforcement of contract obtained after collusion among bidders where action was brought by the State on relation of a taxpayer pursuant to what is now section 24-1-2-5 and remedy was granted not for injury to “the private rights or interest of such taxpayer” but to “secure or protect the interests of the public”
How later courts described this case
- affirming injunction prohibiting enforcement of contract obtained after collusion among bidders where action was brought by the State on relation of a taxpayer pursuant to what is now section 24-1-2-5 and remedy was granted not for injury to “the private rights or interest of such taxpayer” but to “secure or protect the interests of the public”
Written by the judges who cited it.
The opinion
On Petition for Rehearing.
Felt, J.
10. Appellants earnestly urge their petition for a rehearing, and by it seek to present some new questions not presented by their original briefs. It is well settled that this cannot be done., Chicago, etc., R. Co. v. Roth (1915), 59 Ind. App. 161 , 108 N. E. 971 . Most of the questions discussed are decided by the original opinion, and after a careful review of such questions we find no reason to change or modify the conclusions already announced. In our view, appellants’ contentions are fully *135 answered-by the statute under which the suit was brought and by virtue of which the 'judgment rendered is fully authorized.
11. Appellants also insist that the court failed to decide the question of defect of parties defendant presented by appellants’ demurrer to the complaint. The point was not decided because the court concluded that it was not duly presented by the briefs. We have re-examined the briefs and find that they do not strictly comply with the rules, »but may be treated as showing a substantial compliance sufficient to justify us in considering the question. The demurrer alleges such defect by showing that other parties assessed for the construction of the ditch are not made defendants, and sets out their names. The suit was brought by the State of Indiana, on relation of Nathaniel Brown, a taxpayer, against Royer, who .obtained the contract for construction of the ditch, and Newman, the drainage commissioner, who received the bids and entered into the-contract with Royer for the construction of the public ditch. The suit was brought to' declare the contract void and to enjoin the parties thereto from carrying it out. The parties to the contract were made defendants to the suit and the court granted the relief prayed as shown in the original opinion.
The statute authorized appellee as a taxpayer to maintain the suit. The persons assessed for the construction of the ditch were not parties to the contract and were not necessary parties to the suit to declare the contract void under the statute and to enjoin the parties thereto from carrying out its provisions. §269 Burns 1914, §268 R. S. 1881; Town of Windfall City v. First Nat. Bank (1909), 172 Ind. 679, 687 , 87 N. E. 984 , 89 N. E. 311 ; Cummings v. Stark (1894), 138 Ind. 94, 103 , 34 N. E. 444 ; Haggerty v. Wagner (1897), 148 Ind. 625, 636-639 , 48 N. E. 366 , 39 L. R. A. 384.
The persons assessed were not parties to the contract and *136 could not have prevented appellee from obtaining the relief prayed for, if be brought himself within the provisions of the statute. They neither had nor claimed any interest adverse to the right asserted by appellee and were not necessary parties to a complete determination of the questions involved in the suit. The court, therefore', did not err in its ruling on the demurrer to the complaint.
The petition for a rehearing is overruled.
Note.—Reported in 112 N. E. 122 , 113 N. E. 312 . See under (5) 22 Cyc 771; (6) 122 Cyc 766. Injunction, right of taxpayer to relief by: (a) for misapplication of funds (3 Ann. Cas. 1014), in absence of statute, 36 L. R. A. (N. S.) 1; (b) in letting of contracts for public work, 17 Ann. Cas. 653 (where favoritism is shown, 36 L. R. A. [N. S.] 10) ; (e) to prevent enforcement of ordinance claimed to be void, 118 Am. St. 372. Laches in taxpayer’s actions, effect, Ann. Cas. 1913C 898.