Blanchard v. Burns

• Decision Date: 22 December 1913
• Citation: 162 S.W. 63,110 Ark. 515
• Parties: BLANCHARD v. BURNS
• Court: Arkansas Supreme Court

162 S.W. 63

110 Ark. 515

BLANCHARD v. BURNS

Supreme Court of Arkansas

December 22, 1913

Appeal from Washington Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

H. L Pearson and E. S. McDaniel, for appellant.

1. Prior to the act of June 2, 1911, material men and laborers had no lien upon public property, or property in trust, etc. 17 Ark. 483; 49 Id. 94; 56 Id. 476.

2. Public officers, county boards, supervisors, commissioners etc., and other governing bodies are liable for ministerial acts causing injury. Act June 2, 1911; 49 S.W.705; 20 Tex Civ. App. 178; Cooley on Torts, 379; 95 Am. St. (note) 74; 52 Ark. 541; 35 Cyc. 908; 18 Wis. 627; 110 Tenn. 67.

R. J. Wilson, for appellees.

1. The purpose of the act is to protect persons who supply labor and material for which no lien could be imposed before its passage. 17 Ark. 483; 49 Id. 94; 56 Id. 476.

2. The directors are not liable as individuals. 5 L. R. A. 463; 75 N.Y. 303; 79 Mo.App. 665; 40 So. 604; 40 Ark. 431; 3 Id. 285; 5 Id. 536; 11 Id. 44; 13 Id. 58; 22 Id. 369; Kirby's Dig., §§ 7541, 7689, 7684, 7611, 7691, 5 L. R. A. (N. S.) 463.

OPINION

MCCULLOCH, C. J.

Appellees were directors of a special school district in Washington County, Arkansas, and in the name of said district constructed a school building, the contract being let to a contractor engaged in that kind of work.

Appellant was engaged in the lumber business, and sold building material to the contractor which was used in the construction of the school building. The contractor failed to pay, and appellant instituted this action against appellees to recover the amount of the bill, predicating liability on the ground that appellees had failed, as required by statute, to exact from the contractor a bond "to pay all indebtedness for labor and material furnished in the construction."

The court sustained a demurrer to the complaint, and final judgment was rendered against appellant, from which judgment he has prosecuted this appeal.

The action is founded on alleged violation by appellees of the following statute:

"Section 2. Whenever any public officer shall, under the laws of this State, enter into a contract in any sum exceeding one hundred dollars, with any person or persons, for the purpose of making any public improvements, or constructing any public building, or making any repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureties to the State of Arkansas, in a sum not less than double the sum total of the contract whose qualifications shall be verified, and such sureties shall be approved by the clerk of the circuit court in the county in which the property is situated, conditioned that such contractor or contractors shall pay all indebtedness for labor and material furnished in the construction of said public building, or in making said public improvements." Act of June 2, 1911, Public Acts of 1911, page 463.

The next section provides that said bond shall be filed in the office of the clerk of the circuit court and that "any person to whom there is due any sum for labor or material furnished, or his assigns, may bring an action on said bond for the recovery of said indebtedness."

According to the allegations of the complaint, which must be taken as true for the purpose of testing the sufficiency of the demurrer, appellees, as school directors, failed to take bond from the contractor, and appellant has been unable to collect his debt.

Does the statute impose any liability on appellees, as individuals, which will warrant a recovery in favor of appellant for the amount of his bill for materials furnished?

It will be observed that the statutes does not, in terms, impose any liability, either on the school district or the officers. If any liability exists at all, it must be by virtue of a breach of duty by the directors as individuals. The language of the statute, in referring to the officers, does so in an official, and not in an individual, capacity. It is not intended to impose any duty as individuals, but as officials representing the public. In other words, so far as it applies to improvements made for a school district, it means the district itself, and the duty is only imposed on the officers as the representatives of the district, collectively in their representative capacity, and not as individuals.

There is a statute in Missouri similar in terms to our statute, except that, instead of saying that all public officers shall take a bond, it says that "all counties, cities, towns and school districts, making contracts," etc., shall require every contractor to execute a bond. A question similar to this arose in that State, and the Court of Appeals, in disposing of it, said:

"In letting...