
    Stewart v. The City of Jeffersonville, for the use of Sweeny et al.
    
      City.—Street Improvement.—Appeal—Pleading.—Upon appeal from a precept issued in favor of a contractor for work done in improving a street of a city, a complaint which does not aver that an advertisement for bids or the letting of the contract was ever made is bad on demurrer. Pettit, C. J., dissented, holding that an averment that an advertisement for bids was made is an averment of a fact which must precede the letting of the contract, and which therefore cannot be inquired into on appeal.
    
      G. V. Howk and W. W. Tuley, for appellant.
    
      J. H. Stotsenburg and S. S. Johnson, for appellee.
    APPEAL from the Floyd Common Pleas.
   Pettit, C. J.

—This was an appeal from a precept of the common council of a city in favor of the contractors, for work done in improving a street, by Stewart, a property owner on the street. There was a demurrer to the complaint for want of sufficient facts sustained, and exception taken; and this ruling is assigned for error. The complaint does not show that an advertisement for bids or the letting of the contract was ever made. Following the ruling of this court in Moberry v. The City of Jeffersonville, 38 Ind. 198, and in Baker v. Tobin, 40 Ind. 310, we hold the complaint was bad, and that the demurrer to it should have been sustained.

The judgment is reversed, at the costs of the appellees.

I have written this opinion to meet the views and judgment of my brother judges, but I do not agree with it. The charter under which the city was organized and acting, and in reference to appeals from street improvement precepts, provides, that no question of fact shall be tried which may arise prior to the making of the contract for the said improvement under the order of the council.” 3 Ind. Stat. 102. I hold that, whether there was an advertisement for bidders given, is a fact which must precede the letting of the contract, and cannot be inquired into on an appeal in such a case as this, by demurrer or otherwise.  