131 Ind. 393 | Ind. | 1892
The appellant prosecutes this appeal from a decree rendered in a suit brought on the relation of Charles A. Rhine, commissioner of drainage, to enforce the collection of an assessment levied to pay the cost of constructing a public ditch. The proceedings for the construction of the ditch were had in the Blackford Circuit Court, and were conducted under the drainage law of 1881, and the amendatory statute of 1883; section 4273, R. S. 1881, et seq.; Elliott’s Supp., sections 1175 to 1188. The ditch was ordered to be constructed by the circuit court, the order was so far carried into effect by the execution of contracts, bonds and the like, as well as by the performance of work by the contractor, that six miles of the ditch had been constructed at the time this suit was brought, leaving five miles of the entire line of the ditch to be constructed. The appellant, against whose land an assessment was levied, answered, setting forth the contract for the construction of the ditch, which contract reads as follows:
“ Smith Casterline, commissioner of drainage of Blackford county, Indiana, charged with the construction of the ‘ Big Lick Creek Ditch,’ of the one part, and Henry C. Paul, of the other part, contract as follows: Said Henry C. Paul agrees to construct all that part of the Big Lick Creek Ditch which extends from station 0 to 668 thereof in said county, in all respects according to the specifications and requirements thereof in the report of the commissioners of drainage, confirmed by the judgment of the circuit court of said county establishing said ditch. No part of said work shall be ac*396 cepted from said Henry C. Paul as completed until all of said ditch down stream therefrom shall have been completed according to said specifications; and said Henry C. Paul agrees to complete the work herein contracted for by the 12th day of March, 1891, or within ten days after all that part of said ditch which is down stream therefrom shall have been so completed as aforesaid, and accepted by said drainage commissioner and by the court establishing said ditch, and in consideration of all which said Henry C. Paul is to receive of said Casterline, commissioner of drainage, the sum of $15,498 out of the money arising from the assessments made by the drainage commissioners and confirmed by said court for the construction of said ditch. And it is agreed that Casterline shall not, in any event, be liable, either personally or as such commissioner, to pay any money to said H. C. Paul on account of this contract or the construction of the work herein contracted for except such money as he may obtain from said assessments; but that he shall use due diligence to so collect and apply said assessments as to pay said Henry C. Paul all money that shall become due him hereunder.”
This contract is made with special reference to the act of the Legislature of this State, entitled “An act concerning drainage,” approved April 8th, 1881, and the amendments thereof in chapter 126 of the Acts of 1883, approved March 8th, 1883.
The answer, after setting forth the contract, alleges “ That by the terms of said contract with the said Paul for the construction of said ditch, no part of the cost and contract-price for the construction thereof is to be paid until said ditch shall have been constructed according to the plans and specifications, order and judgment of the court in the establishment thereof, and to the satisfaction and acceptance of said court; that said commissioner, long before the commencement of this suit, collected of the benefits so assessed, to wit: In May, 1889, more than $1,000, -with which money he, as
“ The defendant avers that after the making of said contract for the construction of said ditch with the said Paul, the said Paul, with the full knowledge of said commissioner, commenced the construction of said ditch, and proceeded to construct the same by the use of a dredging machine, and has proceeded and constructed in manner and form as hereinafter stated some five miles of the same, and is proceeding by the use of said machine, and with the knowledge and per
It is very difficult to determine upon what definite theory the answer proceeds, or to give it a construction that will make its allegations harmonious and consistent. It will conduce to clearness to state at the outset some general rules by which we must be governed, and after this is done con
The second paragraph of the answer must be regarded as in confession and avoidance. If it be regarded as in denial, then, as the general denial was pleaded in the first paragraph, we should be compelled to hold that there was no prejudicial error in sustaining the demurrer even if the answer was good, inasmuch as it is well settled that there is no available error in sustaining a demurrer to a paragraph of an answer in a case where the same evidence is admissible under other paragraphs of the answer which are allowed to stand.
A single paragraph of an answer can not perform a double office, that is, it can not be good as a denial and also as a plea in confession and avoidance. Cronk v. Cole, 10 Ind. 485; Kimble v. Christie, 55 Ind. 140; Woollen v. Whitacre, 73 Ind. 198; Richardson v. Snider, 72 Ind. 425; State, ex rel., v. Foulkes, 94 Ind. 493 (498); Petty v. Trustees, etc., 95 Ind. 278; Nysewander v. Lowman, 124 Ind. 584 (590). The answer before us, if good at all, must be good as a plea in confession and avoidance, and this it can not be unless it overcomes by affirmative allegations the prima facie case which it confesses and seeks to avoid. The affirmative allegations are the controlling ones, and those which are equivalent to the denials embraced in the answer of general denial are without influence.
A pleading is to be judged from its general scope and tenor, and not from fragmentary statements or general conclusions cast into it. Neidefer v. Chastain, 71 Ind. 363; Lawrence v. Beecher, 116 Ind. 312. The specific allegations are the influential ones to which general statements yield. Reynolds v. Copeland, 71 Ind. 422; Keepfer v. Force, 86 Ind. 81; Spencer v. McGonagle, 107 Ind. 410; McPheeters v. Wright, 110 Ind. 519; City of Logansport v. McConnell, 121 Ind. 416 (417). This established and salutary rule of pleading réquires us to regard as of no effect some of the
Averments contradicting matters of which judicial knowledge is taken are generally unavailing. Jones v. United States, 137 U. S. 202; Jamieson v. Indiana Natural Gas, etc., Co., 128 Ind. 555 (574). As to the extent of this rule, or the limitations, upon it, we need not inquire, since it is enough for our present purpose to give it a very restricted application. This is so, because it is sufficient to employ it for the purpose of denying influence to the conclusion of the pleader that because stakes and lines are obliterated the ditch can not be completed according to the contract, for it is matter of common knowledge that lines once established and once designated by marks can be re-established. The general conclusion is really no more than the unsupported opinion or belief of the pleader, for the specific facts pleaded do not give it support, and it is evident that it can not be supported.
It is well settled that a pleading must proceed upon some definite theory. It is clear that an intelligent issue could never be formed if there were no such rule, and hence the courts have adhered to the rule with strictness. Mescall v. Tully, 91 Ind. 96 and cases cited; Toledo, etc., R. R. Co. v. Levy, 127 Ind. 168 (171), and cases cited. We must, therefore, ascertain, if we can, upon what theory this answer proceeds and determine whether it is good upon the theory on which it professes to proceed.
It is exceedingly difficult to determine upon what theory the answer proceeds. Some of the allegations seem to indicate that it proceeds upon the theory that there is no authority to collect the assessment. Among the allegations we find this : “ That said commissioner now has in his hands a large sum of money, to wit, more than one hundred dollars,.
If the answer is to be considered as proceeding upon the theory that the commissioner had no authority to enforce the assessment because the work was not completed, it is clearly bad. The discussion of this point necessarily covers a wide range, inasmuch as it leads us to examine generally the provisions of the statute, to consider the duties and authority of the drainage commissioner, and the rights and liabilities of the land-owners.
The statute invests the drainage commissioner with comprehensive powers. Elliott’s Supp., section 1178. Among those principal powers is the power to levy and enforce assessments fi’om time to time as the work progresses. Under the elementary rule that the grant of a principal power car
A public officer, whose duty it is to conduct or supervise a public work, is presumed to rightfully discharge his duty, and what he does within the scope of his authority is regarded as prima facie right, and in accordance with the law. Linville v. State, ex rel., 130 Ind. 21; McCoy v. Able, post, p. 417. See, also, authorities cited in Elliott Roads and Streets, pp. 430, 438, notes.
In the absence of a showing to the contrary, it must be presumed that the drainage commissioner did his duty in making the assessment he is here seeking to enforce, for the law, as we have seen, authorizes him to make assessments as the work progresses. It, indeed, goes further, for it provides that expenses of the court and the like may be included in the assessment. This is the clear implication of the language employed by the framers of the statute, for it declares that the commissioner “ shall pay costs not otherwise adjudged, and expenses incident to establishing the same, and incurred in preparation of reports, and any expense which the petitioner may have incurred in the preparation or presentation of his petition, and such other expenses as the court shall deem a proper charge upon the funds in the hands of such commissioner, and the damages assessed, and the cost of construction.” Elliott’s Supp., sect.ion 1178. The express words of the statute make it quite clear that an assessment may be made and enforced to pay other expenses than those directly incurred in constructing the ditch. As the commissioner can have no other funds except such as are derived from assessments, it must of necessity follow that when it becomes necessary and proper under the law, to secure funds, he may make an assessment. Where the contrary does
It follows from what we have said that there was authority to levy the assessment, although the ditch was not fully constructed, and it follows, also, that the answer is bad unless it fully meets the complaint and states facts that make it appear that the drainage commissioner either exceeded his authority or was guilty of a breach of duty.
The statute does not so restrict the authority to levy assessments as to inhibit its exercise until the money is required to pay for work that has been done. We think that the statute considered, as it must be, as an entirety, authorizes the commissioner to exercise a reasonable discretion in levying assessments to secure in advance money to pay for work in progress, but not completed. Provision is made for the execution of a bond by the contractor, and various other provisions are found in the statute indicative of an intention to authorize the commissioner to secure money to pay for the work as it is done. The entire proceeding is, it is important to remember in this connection as well as in another of which we shall presently speak, conducted under the control of a court of superior general jurisdiction, so that the land-owners can at any time apply to the court to restrict or direct its agent. The contract does not preclude the commissioner from levying or collecting assessments. Counsel refer us to the provision of the contract which reads thus: “ No part of said work shall be accepted from said Henry C. Paul as completed, until all of such ditch down stream therefrom shall have been completed according to said specifications,” and, as we understand them, argue that this precludes the levying of an assessment. We regard the position of counsel as plainly untenable. It may be true that the contractor can not be paid until the wbrk specified is completed as the contract requires, but, granting this to be true, it would by no means follow that the commissioner did not have authority to levy an assessment. Counsel quote
We fully agree with appellant’s counsel that the powers of the drainage commissioner are statutory. He has only such powers as are granted to him expressly or by clear and necessary implication. Weaver v. Templin, 113 Ind. 298; Smith v. State, ex rel., 117 Ind. 167; Indianapolis, etc., G. R. Co. v. State, ex rel., 105 Ind. 37; Fries v. Brier, 111 Ind. 65. But while his powers are strictly statutory, he has, neverthe
We regard the answer as bad, although it be construed as sufficiently showing that the work was not done, or being done, as the contract required. In affirming this we do not mean to adjudge that the commissioner has authority to permit a material or injurious departure from the contract. We affirm, on the contrary, that he has no such authority. He may, perhaps, in the exercise of a sound and reasonable discretion, permit departures of an immaterial nature, or which can not result to the injury of the land-owners assessed, but he can not authorize a change in the mode of doing the work to the substantial injury of those upon whom the burden of paying for it is cast by law. But it by no means follows that because the duty of the commissioner is to compel the performance of the work in substantial compliance with the contract, his failure to do- so will constitute a defence to a suit to enforce an assessment. The land-owner is not without remedy, but his remedy is not by way of defence to the assessment. His remedy is to make application to the court having control of the work, and whose agent the commissioner is, to compel a performance of duty by the contractor and the commissioner. This was expressly decided in the case of Indianapolis, etc., G. R. Co. v. State, ex rel., supra. In that case it was said : “ The remedy is, therefore, to apply to the court, and through its order and intervention secure the due- execution of the work.” The answer in the case from which we have quoted is very much stronger than the answer in the case before us, for in that case the answer averred that it was impossible to construct the proposed ditch, and stated facts tending to support that averment; and it also averred that the ditch had been abandoned. It is clear, therefore, that we must either directly overrule that case or adjudge
Our ultimate conclusion is that, whatever view may be taken of the answer, there was no error in holding it bad.
Judgment affirmed.