63 Ind. App. 123 | Ind. Ct. App. | 1916
Lead Opinion
This suit was brought by appellee against appellants to annul the contract for the construction of a public drain, to enjoin the collection of assessments for the improvement and the payment of money by the drainage commissioner to the contractor, appellant Royer. The complaint is in one paragraph and is based on the act of 1907. Acts 1907 p. 490, §§3866-3877 Burns 1914. . It was answered by general denial and a plea of estoppel to which a reply in general denial was filed. On due request the court made a special finding of facts on which it stated its conclusions of law. The errors assigned and presented by the briefs.call for a decision of the questions relating to the
The substance of the finding of facts so far as material to the questions presented is as follows: The relator, Nathaniel Brown, is a taxpayer of Van Burén township, Pulaski county, Indiana, and owns real estate abutting a public drain known as the “John F. Taylor ditch,” which land is assessed for the construction of said ditch. Jerome B. Newman was, on October 6, 1910, duly appointed drainage commissioner or superintendent of construction of said ditch, which drain was duly established on October 6, 1910.
Said Newman duly qualified as such drainage commissioner and gave notice that he would receive bids for the construction of said ditch on November 5, 1910, and thereafter entered into a contract therefor with Miles V. Royer for $6,490. Norman S. Denny, Edgar X. Boyles and said Royer each bid on said ditch. After making some bids Denny and Boyles retired and held a consultation, and Denny thereafter caused Royer to join them and thereupon Denny and Royer executed their note for $25 payable to Boyles and delivered it to him. That Denny had agreed with Boyles to give him the note in consideration of Boyles
The conclusions of law on the finding of facts are as follows: “(1) The contract let by Jerome B. Newman, commissioner, to Miles Y. Royer is void as against the principal for which said commissioner was acting. (2) That the enforcement of said contract should be enjoined. (3) That the principal for which said commissioner was and is acting is not liable on said contract, and that Jerome B. Newman, commissioner, should be enjoined from making payments on said contract.” The appellants each separately excepted to each conclusion of law.
The suit was brought under the statute. Acts 1907 p. 490, §§3866-3877 Burns 1914. The portions of the statute involved here provide as follows:
Section 3: “Any and all schemes, designs, understandings, plans, arrangments, contracts, agreements or combinations to limit, restrain, retard, impede or restrict bidding for the letting of any contract for * * * public work, directly or indirectly, or to in any manner combine or conspire to stifle or restrict free competition for the letting of any contract for * * * public work, are hereby declared illegal, and any person who shall directly or indirectly engage in any scheme, design, understanding, plan, arrangement, contract, agreement or combination to limit, restrain, retard, impede or restrict bidding for the letting of any contract for * * * public work, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined }[: # 5?
Section 4: “If there shall be collusion or fraud of any kind or character among the bidders at the letting of any contract or work as provided in section three of this act, then the principal who lets the contract or work, or for whom the contract was let, shall not be liable for such letting or on account of such letting or on account of said*129 contract, or work, or any part thereof, to the successful bidder to whom the contract or work was let, * * * if such successful bidder be a party, directly or indirectly, to such collusion or fraud, on such contract, or letting, or for any work, materials furnished or thing done in discharge thereof, or with reference thereto’, and if before notice of such collusion or fraud, payment or partial payment thereon or therefor shall have been made, such principal may at any time within five years from the date of the last payment made thereon or therefor, in an appropriate action in any court of competent jurisdiction in this state recover the full amount of such payment or payments with interest to date of judgment thereon, and attorneys fees, against such successful bidder, and such recovery shall not be a bar to any action, either civil or criminal, brought against such bidder on account of any violation of this act, on behalf of the state by the attorney-general, a prosecuting attorney or otherwise.
Section 5: “It shall be the duty of the attorney-general and of the prosecuting attorney of each judicial circuit to institute appropriate proceedings to prevent and restrain violations of the provisions of this act or any act of the common law relating to the subject-matter of this act. All such proceedings shall be in name of the state of Indiana upon relation of the proper party. The attorney-general may file such proceedings either in term time or in vacation, upon his own relation, or that of any private person, in any circuit or superior court of the state, without applying to such court for leave, when he shall deem it his duty so to do. Such proceedings shall be by information filed by any prosecuting attorney in a circuit or superior .court of the proper county upon his own relation whenever he shall deem it his duty so to do, or shall be directed by the court or governor or • attorney-general and an information may be filed by any taxpayer on his own relation.”
*130 Section. 7: “Any person who shall be injured in his business or property by any person or corporation by reason of the doing by any person or persons, of anything forbidden or declared to be unlawful by this act, may sue therefor in the circuit or superior court of any county in which the defendant or defendants, or any of them, reside or are found without respect to the amount in controversy, and shall recover a penalty of threefold the damages which may be sustained, together with the costs of suit, including a reasonable attorney’s fee.”
contemplated by the act, and relator Nathaniel Brown as a taxpayer is within the purview of the statute. 32 Cyc 625, note 62; Matter of Fenton (1908), 58 Misc. Rep. (N. Y.) 303, 109 N. Y. Supp. 321; State, ex rel. v. Board, etc. (1908), 170 Ind. 595, 608, 609, 85 N. E. 513; Baldwin v. Moroney (1909), 173 Ind. 574, 577, 91 N. E. 3, 30 L. R. A. (N. S.) 761.
The exceptions to the conclusions of law stated on the finding of facts present more serious questions. Appellant contends that it is not shown that the relator will suffer great injury or that he does not have an adequate legal remedy; that the statute (§3872, supra) provides a complete and adequate remedy at law which the injured party is bound to pursue; that the relator is shown to have been guilty of such laches as will deprive him of injunctive re
Appellee contends that the facts bring the case within the provisions of the statute and warrant the relief granted; that the public has an interest in such proceedings; that the collusion shown by the facts is against public policy and an injury to the public on account thereof wiE be conclusively presumed.
The finding shows no wrong committed by the drainage commissioner, but the purpose of the statute is to prevent the party who procures a contract in violation of the statute from deriving any benefit therefrom either directly or indirectly. The provisions are broad enough to authorize an injunction to prevent the doing of anything which recognizes the validity of such contract. If the commissioner may step in and carry out the illegal contract, the purpose
Viewed from the standpoint of the relator’s private interests alone, the law may seem to work a hardship on appellant Royer; but, viewed from the standpoint of honest dealing and the public good, the beneficial character of the statute is apparent. The- question of the hardship that may result in this or any other case is' not a question for the courts, for the legislature had the right to provide the remedies it deemed most expedient and best calculated to accomplish the end in view. The penalties and remedies provided do not affect those who have done no wrong. Those who violate the statute take their chances and cannot escape the consequences by showing that some one authorized to invoke its remedies has not acted promptly, and that the work has proceeded to a point where the remedy seems severe and drastic. Evidently it was the intention of the legislature to make the law so severe that men would be deterred from violating it. .
We conclude therefore that the court did not err in its conclusions of law. The views already announced make it unnecessary to consider other questions presented in the briefs. No reversible error is shown. Judgment affirmed.
Rehearing
On Petition for Rehearing.
The statute authorized appellee as a taxpayer to maintain the suit. The persons assessed for the construction of the ditch were not parties to the contract and were not necessary parties to the suit to declare the contract void under the statute and to enjoin the parties thereto from carrying out its provisions. §269 Burns 1914, §268 R. S. 1881; Town of Windfall City v. First Nat. Bank (1909), 172 Ind. 679, 687, 87 N. E. 984, 89 N. E. 311; Cummings v. Stark (1894), 138 Ind. 94, 103, 34 N. E. 444; Haggerty v. Wagner (1897), 148 Ind. 625, 636-639, 48 N. E. 366, 39 L. R. A. 384.
The persons assessed were not parties to the contract and
The petition for a rehearing is overruled.
Note.—Reported in 112 N. E. 122, 113 N. E. 312. See under (5) 22 Cyc 771; (6) 122 Cyc 766. Injunction, right of taxpayer to relief by: (a) for misapplication of funds (3 Ann. Cas. 1014), in absence of statute, 36 L. R. A. (N. S.) 1; (b) in letting of contracts for public work, 17 Ann. Cas. 653 (where favoritism is shown, 36 L. R. A. [N. S.] 10) ; (e) to prevent enforcement of ordinance claimed to be void, 118 Am. St. 372. Laches in taxpayer’s actions, effect, Ann. Cas. 1913C 898.