Southern Indiana Gas & Electric Co. v. City of Boonville

Tremain, J. The appellant, as a taxpayer in the city of Boonville, Indiana, sought a temporary injunction, enjoining the city from appropriating the sum of $2,000 to employ counsel in a suit filed by the city against the Southern Indiana Gas & Electric Company to condemn its utility property. The court denied the injunction. The *308 sole question before this court is whether or not the city possesses the power to employ additional counsel to assist the city attorney in that suit. Pursuant to Chapter 190, p. 928, Acts 1933, and Chapter 293, p. 1447, Acts 1935, the city took the necessary and preliminary steps to acquire the appellant’s property. The taxpayers voted in favor of the purchase. An offer was made to and refused by the appellant. Thereupon, the city instituted an action to condemn the property. The regularity of these proceedings is not questioned except that the statute (§54-607 Bums Ind. St. 1933, §14024 Baldwin’s Ind. St. 1934, as amended by Chapter 293, Acts 1935) provides that the municipality seeking to condemn a public utility “shall have the right, prior to making the determination as to public convenience and necessity ... to appropriate out of its general fund, such amount, not exceeding five (5) per centum of the total estimated cost of constructing or acquiring such utility, as is necessary to pay the expenses of a preliminary investigation and a proper survey, including the making of engineering plans and an estimate of the cost of constructing or acquiring such utility.” Appellant contends that this statute does not include an expenditure of funds produced by general taxation to employ attorneys to conduct the condemnation proceeding, and that such expense was not included in the estimated cost as submitted to the voters at the time of the election. The city petitioned the State Board of Tax Commissioners for authority to make the appropriation. The petition was granted, but upon the condition that said appropriation be added to the bond issue and repaid to the general fund when and if the bonds were sold. The question of the bond issue was not before the tax commissioners, and is not before this court. The items to be added to the purchase price are stated in the *309 statute quoted above. These are items of expense incurred for services rendered preliminary to the condemnation of the property, and to be included in the bond issue. The fees of attorneys in the condemnation action are not included. However, there is no provision in the statute, providing for the acquisition of a public utility by a city, which prevents a city from appropriating funds to employ counsel to assist the regular city attorney in this as well as in any other action. That is a question resting in the sound discretion of the officials of the municipality. It is one of the incidental powers necessary to the execution of a granted power. City of Logansport v. Public Service Commission (1931), 202 Ind. 523, 532, 177 N. E. 249. The city is granted specific authority to acquire the utility. Pursuant to that specific granted authority the city has the implied authority to employ attorneys to assist the regular city attorney when needed to carry out the granted power. The court is not persuaded that the appellant has made a case showing injury to it, as a taxpayer, or warranting interference by a court of equity, on account of the appropriation of $2,000 for the employment of additional counsel. In the absence of statutory restrictions the city possesses the inherent power to employ assistance in its legal department when the gravity of the litigation reasonably requires such assistance. Justice v. City of Logansport (1892), 6 Ind. App. 135, 32 N. E. 868; 83 A. L. R. 137. Judgment affirmed.