151 Ind. 517 | Ind. | 1898
Appellant sued appellee, the board of commissioners of the county of Cass, and by his complaint sought to invoke the chancery powers of the court to compel appellee to account to him, and pay the judgment which he demanded against it, out of a certain fund created by the sale of bonds to defray the expenses of constructing a public ditch in Cass county. Appellee appeared to the action, by its attorneys, and demurred to the cofhplaint for insufficiency of facts, and also for want of jurisdiction in the court over it and the subject-matter of the action. This demurrer, was sustained, and, appellant electing
The facts averred in the complaint disclose that the ditch, out of which the controversy in this action arises, was established by the board of commissioners of Oass county in 1891, under the provisions of an act of the legislature entitled “An Act concerning drainage under specified conditions,” approved March 7, 1891. See Acts 1891, p. 455, section 5690, Burns’ R. S. 1894 (4317c, Horner’s R. S. 1897, and sections following). The county surveyor appears to have been appointed by the board as engineer to superintend the construction of the ditch, as authorized by the statute; and appellant entered into a contract with this official, as such superintendent, whereby he, under a written contract, agreed to construct that part of the drain apportioned to his lands for a price mentioned in the contract, the work to be performed in the manner stipulated in the report of the viewers and to the acceptance of said engineer, and it was further stipulated that the terms of payment should “be as the law provides.” The complaint substantially alleges that appellant has completely constructed the part of the improvement allotted to him acccording to the terms of the contract, and that said work has been accepted by-said engineer, and that there is due him, and wholly unpaid, the sum of $600, and he has demanded payment thereof from' said board, and given it an opportunity to settle with him. All of which, it is alleged, the board has refused and neglected to do. It is further averred that, under the provisions of the statute in controversy, bonds to the amount of $13,000 were
The theory of appellant’s complaint, as well as the contention of his learned and eminent counsel, is that the contract under which the work in controversy was performed was made with the appellee in its corporate entity, and that in such capacity it must be held to be a trustee of the fund created by the sale of the bonds, and, as such trustee, ought to be required to account to him for an amount thereof sufficient, at least,to pay him for the services rendered. T'hewritten contract, however, which is set out in the complaint, discloses upon its face that it was entered into by and between appellant and the county surveyor, who, as averred, was appointed by the board to let the contracts for constructing the ditch, and to superintend the. construction of the work. The theory and contention of appellant that the contract in question was with the board of commissioners is neither sustained by the facts in the case nor by the provisions of the statute in dispute. Section 8 of the act expressly provides that the board of commissioners shall “direct the surveyor or engineer, who helped to make the apportionment, or some other competent surveyor or engineer,” to attend at the time and place of letting the construction of the ditch, and receive bids therefor and make contracts with the lowest responsible bidders and take bonds from the contractors for the performance of the work undertaken by each.
In the case of Studabaker v. Studabaker (Ind. Sup.), 51 N. E. 933, we were called upon to consider and interpret, to an extent, the identical statute now involved, and we in that case held, in effect, that the question as to- the ultimate completion of the ditch, as an entirety, was one for the determination of the
The improvement contemplated under the law, when completed, in no sense can be said to belong to the county. The board of commissioners in its corporate entity is not a trustee of the work, and certainly has no proprietary interest therein. The ditch, when completed, may be said properly to belong to the taxing district, or the landowners whose lands have been benefited thereby, and taxed for its construction.
The county commissioners, under the law, simply act as a board before whom the necessary proceedings, leading up to its location and final construction, are instituted and conducted. This statute expressly empowers the board to issue bonds which the ■county treasurer is authorized to sell, without expense to the county, to the highest and best bidder,
There can be no warrant for placing a construction upon the law which should result in holding that the board of commissioners is charged with the duty of actually superintending and letting of the contracts, or the construction of the work thereunder, or that it holds the money arising from the sale of the bonds in the hands of the county treasurer in trust, or that this fund is under the direction and control of the board for payment to contractors for services rendered in the construction of the ditch.
It certainly cannot be held, under the facts alleged in the complaint, that - appellee, in its corporate capacity, in which it is sued in this action, is. in any sense indebted to the appellant, or that it has any
Appellant’s contract, as we have heretofore stated, was not with the board of commissioners, but with the engineer appointed by them. It was by and between the.appellant and the engineer whom the statute designates as the proper person to let out the construction of the work to the lowest responsible bidders and to enter into a contract with each of such bidders for the performance of the work allotted. The contract set forth in the complaint does not in any manner profess to be one between appellant and the board of commissioners. It is simply an agreement or contract between the appellant and one N. A. Beck, county surveyor; whom, as it appears, was appointed by the board to take., charge of and superintend the construction of the ditch. Surely, therefore, the board, under the facts, cannot be said to be in any sense a party to the contract and, manifestly, is not liable to be sued for any breach thereof. The fact that the board of commissioners is authorized to either approve or disapprove the contracts, after they have been entered into by the engineer and the contractors, as provided by section 9 of the statute, certainly does not make the board one of the contracting parties. The decision in Board, etc., v. Newlin, 132 Ind. 27, under the facts, lends no support to the theory advanced by appellant in the case at bar.
We do not concur in the assertion of appellant’s counsel that if his client cannot maintain this action, he is without remedy to enforce the payment of his claim for the work which he has performed under his contract. It is true the statute expressly omits to point out in express terms the method by which a
It is a well affirmed principle that where a power is conferred by a statute, everything necessary to carry out the purpose of the power conferred and make it effectual and complete will be implied. Studabaker v. Studabaker, supra; Sutherland on Statutory Construction, sections 340 and 341. The implication or inference which may arise in the construction of statutes is of something not expressly declared, but arises out of that which is directly or expressly declared in the statute. Anderson’s Law Dictionary, 527; Rapalje’s Law Dictionary, 629. If the intention of the makers of the statute in question, in regard to the remedy or method to be employed to enable a contractor to secure payment, from the county treasurer upon the completion of his job, can be ascertained, it will control, for it is a fundamental rule that a matter or thing within the intention of the makers of the law is the same in effect as if it were within its express letter. In our search to discover this intention, we may be guided by a well settled canon or construction which permits us to look to kindred statutes or laws upon the same subject, for
We do not believe that it was intended by the law makers that the members of the board of commissioners, who, as it may be presumed, are not skilled
The fair inference to be drawn from the provisions of the law involved, when aided by laws of a similar import or kindred character, points to the method or remedy mentioned as the one by which a contract- or may obtain pay for services rendered. The engineer appointed by the board may be presumed to be versed in the science of civil engineering, and competent to discover on inspection if the several jobs are completed as required by the contract; and if he finds this to be a fact, the contractor is entitled to his pay, and the engineer should furnish him with the necessary certificate or voucher in order that he may be awarded that which is justly due him, and for a failure to discharge this duty, this official may be compelled to perform it by a writ of mandate, upon a proper showing in a suit instituted by the contract- or. State, ex rel., v. Bever, 143 Ind. 488.
Appellant seems to have placed a proper construction upon the statute in the first instance, for his complaint reveals the fact that when his job was completed he applied to the engineer for a certificate in order that he might present it to the auditor and thereby secure an order for the money due him. That appellant’s right, under the facts, to maintain this action, must be denied, there is no doubt. His controversy, if any, in regard to his right to be paid in full for his work, is certainly with the engineer, and