143 Ind. 488 | Ind. | 1885
The relator, Jasper Roberts, petitioned the lower court for a writ of mandate against the appellee.
In the second paragraph of his answer, appellee alleged that the relator had contracted to complete his work within a specified time; that estimates and certificates were given to him from time to time as fast as the work done would warrant; that the time for the construction of the work by the relator, under his contract, expired before .the said work was completed; that the time for the completion of the same was extended sixty days by the auditor of said county ;
The matters in issue were submitted .to the court, and upon hearing the evidence the relator’s right to a peremptory writ of mandamus was denied, and judgment rendered against him for costs. The only questions presented and argued by counsel for appellant are those arising out of the overruling ■of the motion for a new trial. These, in the main, are, that the judgment is not sustained by the evidence; that it is contrary to both the evidence and the law.
The merits of this appeal may be disposed of by a consideration of the evidence which is in the record by a bill of exceptions. In the determination of the case upon the propositions liaised by the parties respectively, it is necessary to refer to the statute and the rules of law controlling in mandamus proceedings.
Section 4303, R. S. 1881, section 5613, R. S. 1894, of the law relative to the construction of drains like the one in question, provides for the letting of a contract at a public sale for the construction of a drain, and requires the auditor to contract with the party to whom the allotment is sold, requiring him to construct such share or allotment in the manner set forth in the report of the viewers or reviewers, and within such time as the auditor may fix, not exceeding ninety days from the day of sale.
Section 5675, R. S. 1894 (sec. 4305, R. S. 1881), provides that it shall be the duty of the surveyor, on being notified by a contractor that his job is completed, to inspect the same, and if he finds that it is completed according to the specifications, etc., give to the contractor a certificate of acceptance, stating that fact, and in addition stating the amount due to him from the owner of the land, which certificate shall be a lien upon the land assessed, and such officer is further required to file a copy of this certificate with the auditor, who shall charge the amount against the land to be collected as other taxes.
Under the decisions of this court an action will not lie in favor of the contractor against the land-owner for the amount due the latter as expressed in the certificate executed to him by the surveyor, for the reason that the statute provides that the auditor shall charge the amount mentioned in the copy of the certificate filed in his office, on the tax duplicate against the land assessed, to be collected as other taxes are collected. Storms v. Stevens, 104 Ind. 46; Lockwood v. Ferguson, 105 Ind. 380.
This being true, and as the surveyor is charged to inspect the work, and if he finds it properly completed as provided, to accept the same and execute to the contractor the required certificate, and file a copy thereof with the auditor, it becomes an official duty enjoined upon him by law, and it is therefore evident, that under a sufficient showing, when the officer refuses to discharge it, he may be coerced to perform it by a writ of mandate, otherwise the contractor would be virtually
This remedy, although partaking of the attributes of a civil action, is nevertheless regarded as one of extraordinary character, and the rule is'therefore thoroughly established and recognized by the courts, that the writ will only be awarded where there is a clear specific legal right to be enforced, which right, however, must be clearly established, as this writ is never granted in doubtful cases. Burnsville Turnp. Co. v. State, ex rel., 119 Ind. 382 (3 L. R. A. 265), and authorities there cited. State, ex rel., v. Bonnell, 119 Ind. 494.
The evidence in the record tends to establish that the relator bid off and entered into a contract with the auditor to construct ten allotments of the drain in controversy for $3,383.50. The work performed by him was upon seven of these shares, which, as he claimed, had been completed, and that the amount for his work thereon was $2,333.50, and that there was still due him of that sum $861.70.. There is evidence further tending to show that at the time he commenced this action he had received in certificates issued to him by the appellee and by money advanced, a sum in excess of $2,333.50. It also appears that he failed to complete his job within the time provided in the contract, and an extension of sixty days was given to him by the auditor, at the end of which time, the work being unfinished, the auditor notified him to stop work, as no more certificates would be issued to him. The relator, it appears, contracted to construct ten allotments, and the written contract provided in effect, that when the entire work was completed as prescribed by law and the specifications, then he should have a full estimate on all work. The evidence does not show that the relator completed the work undertaken by him within the terms of the contract.
Judgment affirmed.