City of Lafayette v. James

• Decision Date: 20 December 1883
• Docket Number: 9600
• Parties: City of Lafayette v. James et al
• Court: Indiana Supreme Court

92 Ind. 240

City of Lafayette v. James et al

No. 9600

Supreme Court of Indiana

December 20, 1883

From the Tippecanoe Circuit Court.

The judgment is affirmed, with costs.

J. Park and J. Parsons, for appellant.

G. O Behm, A. O. Behm, J. R. Coffroth and T. A. Stuart, for appellees.

OPINION

Zollars J.

This action was instituted in the court be-low by the city of Lafayette against James, as the principal, and the other appellees, as sureties, upon a bond. A demurrer by appellees except James and McCarthy, was sustained to the first paragraph of the complaint. A motion for a new trial by the city was overruled, and judgment was rendered in favor of the city against James, and against the city in favor of the other appellees. Proper exceptions were taken by the city, and the rulings are assigned as error in this court. These assignments may be considered together, as each presents the main question in the case, though in a different way.

The facts, as developed by the pleading and evidence, may be summarized as follows: Sometime before the year 1876 the city erected water-works, to supply water for public and private use. Up to June, 1876, the city managed the works, chiefly through a committee, called a committee on water-works. On the 29th day of May, 1876, the common council of the city passed a resolution to go into an election for a superintendent for the water-works, and thereupon elected appellee James as such superintendent. This was the only legislation of any kind, either by way of resolution, ordinance, or by-law, that had been had by the city council at the time of the passage of the above resolution and election of James, and up to a time which was subsequent to the approval of the bond in suit. The bond is in due form, payable to the city of Lafayette, and conditioned for the payment of $ 2,000. The condition of the bond is as follows: "The conditions of the above obligation are, that should the above bound Dundy A. James honestly and faithfully discharge his duties as superintendent of the Lafayette water-works, and pay over all moneys that may come into his hands as such superintendent, then this obligation shall be void; else in full force and effect." The bond bears date the 1st day of June, 1876, and was signed by James, principal, and the other obligees as sureties. On June 5th James submitted the bond, and it was approved by the common council of the city. At the time the bond was executed and approved, there was no by-law, resolution, or ordinance, or any other legislation requiring the superintendent of water-works or James to give any bond whatever. At the same session at which the bond was approved, the common council adopted "rules and regulations for the government and protection of the Lafayette water-works, together with the tariff of water rates."

Sections 2 and 3 are as follows:

"Sec. 2. There shall be appointed one man who shall be the general executive officer or superintendent of the water-works, and he shall give bond in the sum of two thousand dollars, conditioned for the faithful discharge of his duty. It shall be the duty of said superintendent to see that the by-laws and resolutions of the common council are executed; that the conditions of all contracts by or with said works are faithfully complied with; that the assessment of water rents are duly made, collected, and paid into the city treasury; to credit all accounts and claims, and submit the same to the common council, with such explanations as to enable them to act advisedly thereon; and to have a general supervision over all the operations and interests of said works; and keep the council informed as to the condition of the works, with such suggestions as he may deem necessary for the interests of the same; and make monthly, quarterly, semi-annual, and annual reports of the condition and operation of said water-works, with such other duties as the common council may prescribe.

"Sec. 3. Said superintendent shall also have special supervision of the reservoir, reservoir grounds, and lake thereon; to see that no depredations or misdemeanors are committed, either on the grounds, reservoir or lake."

Other sections prescribe additional duties of the superintendent.

After the adoption of these rules and regulations, the common council did not elect a superintendent, nor did they reelect James, nor require a new bond of him. From that time forward, until in 1879, he acted as such superintendent under his election, collected water rents, and failed to pay over to the city $ 1,533.70.

Are his sureties liable on the bond for the water rents thus collected and not paid over? That is the question for decision.

The power to construct the water-works, at the time they were constructed, was given by section 53 of the act of March 1867, 1 R. S. 1876, p. 291. There was nothing in that act, nor in any act subsequent, and prior to the appointment of James, providing for the appointment of a superintendent of water-works as a city officer. James, then, was not an officer of the city, nor was his bond an official bond in the sense in which that term is used in section 5528, R. S. 1881, which provides that official bonds shall be obligatory upon the sureties for the faithful discharge of additional duties imposed upon the principal by law. The common council, we think, had the right to employ James as an agent or superintendent in the management of the water-works, and to accept the bond from him, as was done. That bond, we think, is obligatory upon the sureties, for all non-feasance and malfeasance of James in the discharge of the duties which devolved upon him by his appointment as superintendent. The important questions to settle...