Henderson v. The Board of Commissioners of he State Soldiers' & Sailors' Monument

• Decision Date: 12 June 1891
• Docket Number: 16,153
• Parties: Henderson, Auditor, v. The Board of Commissioners of the State Soldiers' and Sailors' Monument
• Court: Indiana Supreme Court

28 N.E. 127

129 Ind. 92

Henderson, Auditor, v. The Board of Commissioners of the State Soldiers' and Sailors' Monument

No. 16,153

Supreme Court of Indiana

June 12, 1891

Petition for a Rehearing Overruled Sept. 16, 1891.

From the Marion Circuit Court.

The judgment is affirmed, with costs.

A. G Smith, Attorney General, for appellant.

W. E Niblack and A. J. Beveridge, for appellee.

OPINION

McBride, J.

This was an application by the appellees, the board of commissioners of the State Soldiers' and Sailors' Monument, for a writ of mandate against the appellant as auditor of State.

The controversy can be best stated by quoting the complaint, which is brief, and, omitting prefatory matter, is as follows:

"Your petitioners, George J. Langsdale, Thomas W. Bennett, Mahlon D. Manson, George W. Johnson and DeWitt C. McCollum, respectfully say that they constitute the board of commissioners of the State Soldiers' and Sailors' Monument, provided for by the act known as 'An Act to provide for the erection of a State Soldiers' and Sailors' Monument, or Memorial Hall or Monument and Memorial Hall combined, according to the discretion of the trustees in this act provided for, and declaring an emergency,' approved March 3d, 1887; that said board of commissioners, soon after its organization, proceeded to erect a Soldiers' and Sailors' Monument, as provided in said act, at an estimated cost not exceeding two hundred thousand ($ 200,000) dollars, the amount appropriated by said act; that the sum of ninety-nine thousand and four hundred and forty-one dollars and eleven cents ($ 99,441.11) has been expended in structural expenses upon said monument, and that contracts are outstanding for additional work to be performed upon, and material to be used in the erection of said monument, to meet and discharge which the further sum of ninety thousand nine hundred and eighty-two dollars and sixty cents ($ 90,982.60) will be required; that other sums of money have been expended, as incidental expenses, by said board of commissioners in the discharge of their duties, which have devolved upon them, no part of which incidental expenses has been applied in payment of the structural expenses hereinabove referred to, and which your petitioners are advised and believe are not properly payable out of the amount appropriated by the act for the erection of the monument in question, as follows:

For payment of architects, including plans and

model

$ 10,348 35

For commissioners' per diem, travelling and hotel

expenses

8,879 82

For engineering

15 00

For experts

1,404 25

For attorneys' services

165 00

For office and miscellaneous expenses

1,892 23

For secretary's salary

1,817 25

For printing and stationery

1,401 77

For superintendence

2,265 50

For advertising

795 11

For removing Governor Morton's monument out

of the way

203 25

Making a total of

$ 29,187 53

"Your petitioners say that said several sums of money are merely incidental expenses; that no part of them are structural expenses; but notwithstanding the fact that said sums are purely and solely incidental expenses, they have nevertheless been paid by the treasurer of State upon warrants issued by the auditor of State, and against and in the face of the repeated request of said board of commissioners not to do so, and their repeated protest against so doing, have been by said auditor of State charged to and against the fund of two hundred thousand ($ 200,000) dollars created and set apart by the above recited act, for the erection of a Soldiers' and Sailors' Monument, known as the 'Monumental Fund;' that they, said petitioners, have demanded of John O. Henderson, who is the present auditor of State, that he shall transfer the several sums, all of which are purely incidental expenses, from said 'Monument Fund,' and charge the same to and over against the 'General Fund' in the hands of the treasurer of State, for the payment of current expenses, and that the said John O. Henderson has failed and refused and still fails and refuses to comply with their said demand either in whole or in part or in any respect.

"Wherefore, your petitioners pray that an alternative writ of mandate shall be issued and directed to the said John O. Henderson, requiring him to so transfer said several sums of money so paid and classified, as merely incidental expenses, from said 'Monument Fund,' and to charge the same to and over against what is known as the 'General Fund,' in the State treasury, as above stated, or else to show cause why he shall not or ought not to do so, and will ever pray.

William E. Niblack,

"Albert J. Beveridge,

"Attorneys for Petitioners.

"George J. Langsdale, one of the above named petitioners, being duly sworn, says that he is the president of said board of commissioners of the State Soldiers' and Sailors' Monument, and that he is fully conversant with the facts and matters set out in the foregoing petition; and that the matters and things alleged in the foregoing petition are true, as he is informed and verily believes.

"George J. Langsdale, President.

"Subscribed and sworn to before me, a notary public in and for the county of Marion, State of Indiana, this 20th day of April, 1891.

Eva Edwards,

"[Seal.] Notary Public."

The appellee appeared, waived the issuance of an alternate writ of mandate, and demurred to the petition on the ground that it did not state facts sufficient to entitle the petitioner to an alternative or peremptory writ of mandate. The demurrer was overruled, and the appellant, excepting to the ruling, declined to plead further. Judgment was rendered awarding a peremptory writ of mandate, and from such judgment this appeal is prosecuted.

The questions presented call for a construction of the act approved March 3d, 1887, known as the State Soldiers' and Sailors' Monument Act. Acts of 1887, p. 30. Elliott's Supp., section 2048.

The appellee insists that the sum of $ 200,000 appropriated by that act was intended by the Legislature to be devoted solely to the structural expense of erecting the monument; that no part of it was to be used for the payment of incidental expenses, and that all incidental expenses are to be paid from the general fund in the State treasury. The appellant's contention is, that the sum appropriated was intended to cover the entire amount to be paid by the State toward the erection of the monument, and that there is no appropriation of any other sum for the payment of incidental expenses.

The provisions of the act in question are, substantially, as follows:

"Section 1. The sum of two hundred thousand dollars * * is hereby appropriated, out of any moneys in the treasury not otherwise appropriated, for the purpose of erecting a State Soldiers' and Sailors' Monument, said appropriation to be used in connection with such other funds as have already been, or may hereafter be, donated and contributed for said purpose."

Section 2 provides for the appointment of five commissioners, prescribes their oath of office, requires them to each give bond in the sum of $ 5,000 for the faithful performance of their duties, and further conditioned that the cost of the monument shall not exceed the appropriation, with donations and contributions; fixes their compensation at four dollars per day, and travelling expenses, and provides for the filling of vacancies.

Section 3 prescribes certain of their duties, locates the monument in Circle Park, in the city of Indianapolis, and authorizes the making of certain contracts with the city.

Section 4 requires the commissioners to prepare, select, or adopt a design for the monument, to advertise for plans, designs and specifications, to offer a premium of $ 1,000 for the best, and $ 500 for the second-best design, with authority to reject any and all designs offered, and to readvertise as often as may be necessary to procure suitable designs and plans, and authorizing them to employ experts to examine all plans, and test all estimates submitted.

Section 5 authorizes the letting of contracts for the work, and prescribes the manner of paying the contractors.

Section 6 prescribes the material to be used in the erection of the monument, and requires the architect to give bond, with sureties, in the penal sum of $ 10,000, "conditioned that said plan shall be perfect and complete for the purpose designed and intended, and that the monument shall be fully completed and finished as a whole, and in every part, for and within the price and cost estimated and fixed by said architect, and which price or cost shall be stated in his proposition or submission of plan and specifications." This section also forbids the making of any change in the plans or specifications which will increase the aggregate cost of the monument so as to exceed the cost prescribed in the act.

Section 7 authorizes the appointment of a secretary, prescribes his duties and fixes his compensation at $...