180 Ind. 63 | Ind. | 1912
This is a proceeding in mandamus to compel the Advisory Board of Sugar Creek Township, Hancock County, Indiana, to make a record of its proceedings relative to a contract of employment of relator to prepare plans and specifications for heating and ventilating a school building, and to correct other records, and to make an appropriation for payment of relator. The sole question is the sufficiency of the complaint, to which a demurrer was sustained on account of insufficient facts to constitute a cause of action.
The material allegations of the complaint are, that the named persons defendant constitute the Advisory Board of Sugar Creek Township in Hancock County, Indiana; that one Burkhart is the trustee of the township, and these parties occupied such respective positions at the time of the various proceedings set forth; that Sugar Creek School Township is the owner of a school building and grounds located in school district No. 7 of that township; that the school building was declared by the trustee to be unsanitary and unfit for school purposes, being improperly heated and ventilated;
That the trustee requested and it was promised that the record should be made in accordance with the facts, and that such board neglected, failed and refused to do so, and still refuses; that relator acting in good faith, and with knowledge of the action taken and the representation of the chairman of the board, that the record would be made in accordance with the facts, performed his part of the contract and prepared and submitted the plans and specifications to the board and they were accepted and approved by the board, and made the basis of advertisement for bids, and the work was let on June 13, 1911, to a third person, based upon such plans and specifications for the sum of $3,902.80, and an appropriation was made on June 15, 1911, to cover the contract price for the work, but the five per cent commission for the services of relator, in the sum of $196.64, was not included, and that such board refused at the time the appropriation was made for the work, and has since refused, to make an appropriation to pay him. It is also alleged that there is present in the special school fund a sum sufficient to pay relator out of which to make an appropriation therefor.
The points made against the complaint on demurrer are, that the township trustee is limited in power to those powers expressly conferred by statute; that in no event can a debt be created against the township by trustees without special authority; that a township trustee cannot contract until the contract is approved by the advisory board; that a township trustee cannot by contract create a debt against the township in the absence of an appropriation to pay the debt; that the advisory board only can create a debt against the township, and then only as provided by statute; that con
Township trustees are charged by statute with the duty of providing and keeping sehoolhouses in repair and in healthful and sanitary condition. §6410 Burns 1908, Acts 1901 p. 514; Acts 1911 p. 118. Before a building can be constructed, trustees prior to 1911 were required to “procure suitable specifications therefor, to be used by bidders * * *. If it is necessary to- make repairs * # # than current or incidental repairs,” they were required to “make an itemized statement of the nature and character of the work, to be made for the use of bidders.” §9598 Burns 1908, Acts 1899 p. 150.
It has been the uniform holding of this court and the Appellate Court that a contract made without an appropriation to pay the debt thereby incurred, is void. Waters v. State, ex rel. (1909), 172 Ind. 251, 88 N. E. 67; Teeple v. State, ex rel. (1908), 171 Ind. 268, 86 N. E. 49; State, ex rel. v. Anderson (1908), 170 Ind. 540, 85 N. E. 17; Pipe Creek School Tp. v. Hawkins (1912), 49 Ind. App. 595, 97 N. E. 936; Patterson v. Middle School Tp., supra. In the latter case a distinction is pointed out between the things required to be done under the township advisory board act, and other provisions of our statutes, but the doctrine is there reasserted and cases cited to the point that township
It is elementary that in order that a mandate shall issue, there must be both a duty and the power to act, in the officer who is to be commanded. Teeple v. State, ex rel., supra, and eases cited; Waters v. State, ex rel., supra, and cases cited. If a record must have been made when the contract was entered into, and an appropriation then made, and a record made of that act, it is clear that it cannot be made at some later time. That would be to render valid in another way, a thing which in its inception was invalid for failure to observe the statutory requirement, and which can only be valid by being done in a given way. If a record can be made afterward to validate that which was invalid under this particular statute, the statute would be nullified, and it is mandatory. It is conceded by relator by bringing this action that a record is necessary, to show both the authorizing of the contract and the making of an appropriation, and it is directly alleged that no appropriation Avas made at any time. It was doubtless the object of the statute to prevent just what relator here seeks to have done, so far as making a record is concerned, and if as we have seen, the contract must have been preceded, or accompanied by an appropriation, a record afterward would be of no avail, that is, no duty is shoAvn, for the discharge of which mandamus will lie. As it appears affirmatively that no appropriation was made, and as none can now be made so as to validate a contract which was invalid by reason of the lack of an appropriation, the x-elator can have no interest, and in having the record made as he claims no duty to make it is shoxvn, and the question is practically a moot one.
The purpose of the statute seems to have been to put the burden upon those dealing with these particular officers, of
That many hardships may arise from this state of the law, we do not doubt, and in this ease it seems so to us, but we are charged with the duty of enforcing the law as the legislature has made it, without power to relieve from hardships in individual cases. It is alleged that the board “fraudulently failed, refused and neglected to make an appropriation. ’ ’ No fact is alleged showing in what respect fraud was practiced, besides, relator had it in his power before he did anything, to have seen to it that the proper record of his contract and an appropriation and a record of it, had been made, and that duty was imposed upon him by statute, as a condition of binding the school township.
¥e see no escape from these conclusions, and the judgment is affirmed.