Dissenting Opinion.
Baker, G. J.,For the reasons stated in my dissenting opinion in Adams v. City of Shelbyville, ante, 467, I think that the Barrett law as enacted and also as now construed is unconstitutional.
But, independently of the question whether the Barrett law provides for special assessments according to frontage or according to special benefits actually received, I think the property owners in this case should not be held to be remediless. If the acts done and threatened by the city are in contravention of those principles on which all the members of this court agreed in the Adams-Shelbyville case, the property owners should be entitled to an injunction against the city and the contractor who claims under the city, — even though the city and contractor claim to be acting in accordance with the Barrett law as now construed. The pretense of acting under a statute is of no avail, if the acts done and threatened are in fact unlawful. The complaint sets forth the declaratory and authorizing ordinances under which the contract in question was made. These declare that the work is to be done under the Barrett law and ordinance number 966 of the city. Neither this ordinance nor the contract is set forth, and it may be that their purport is not sufficiently averred ; but, as I understand the pleading, the property owners allege that under the ordinance and contract the city and contractor are undertaking, threatening, and claiming the right, to fasten the whole cost of the improvement, except for street and alley crossings, upon the abutting property at a uniform rate per front foot.
Further, I understand from the complaint, though it is not alleged with very great clearness, that the city claims the right and intends to issue improvement bonds to provide for the total cost of the improvement, and either to sell them or deliver them to the contractor in payment for his work. It has uniformly been held that the city incurs no personal liability as maker on street improvement bonds. The reason, of course, is that the bonds represent only the liens on the abutting property. If the city were permitted to issue bonds to pay for street and alley crossings, or for that indefinite sum which the majority hold the city may be called upon to pay, the city would necessarily be the maker of such bonds and would be primarily and *698solely liable thereon. But there seems to be no provision for such bonds in the Barrett law..
The contractor would have some difficulty in foreclosing the lien represented by such bonds. I think that the only bonds provided for in the Barrett law are those issued in anticipation of the collection of such assessments as have been divided into ten annual instalments by the action of the property owners in signing waivers of illegality and irregularities. Section seven, as modified by the act of March 3, 1893, Acts 1893 p. 383, requires that all assessments against property whose owners do not sign waivers shall be paid “in full when made,” and provides for placing only the assessments against property whose owners do sign waivers on the city tax duplicate in ten annual instalments. The bonds are made payable in ten annual payments out of the fund derived from the assessments put upon the tax duplicate. And it is bonds, “for the purpose of anticipating the collection of such assessments,” that the city is empowered, under section eight, to issue. The property owners, as citizens and general taxpayers, certainly have the right to an injunction against the issuance of any street improvement bonds except those .authorized by the statute, namely, those issued after the waivers are signed, for an amount not exceeding such deferred assessments.
Again, the appellees ask an injunction because the city is incurring a debt and is already indebted beyond the constitutional limit. As, under the decisions, no debt of the city results from the contract except upon the completion and final estimate of the work, or as estimates therefor may be made from time to time, it may. be that the complaint does not show with sufficient particularity that the city will be unable to pay out of the current revenues of the city its ordinary current expenses as well as its part of the expense of the improvement of the street. Quill v. City of Indianapolis, 124 Ind. 292, 7 L. R. A. 691; City of Laporte v. Gamewell, etc., Co., 146 Ind. 466; Cason v. City of Lebanon, 153 Ind. 567.