Conn v. Board of Commissioners of Cass County

• Decision Date: 29 November 1898
• Docket Number: 18,785
• Citation: 51 N.E. 1062,151 Ind. 517
• Parties: Conn v. Board of Commissioners of Cass County
• Court: Indiana Supreme Court

51 N.E. 1062

151 Ind. 517

Conn v. Board of Commissioners of Cass County

No. 18,785

Supreme Court of Indiana

November 29, 1898

From the Cass Circuit Court.

Affirmed.

D. P Baldwin, for appellant.

Nelson & Myers, for appellee.

OPINION

Jordan, J.

Appellant sued appellee, the board of commissioners of the county of Cass, and by his complaint sought to invoke the chancery powers of the court to compel appellee to account to him, and pay the judgment which he demanded against it, out of a certain fund created by the sale of bonds to defray the expenses of constructing a public ditch in Cass county. Appellee appeared to the action, by its attorneys, and demurred to the complaint for insufficiency of facts, and also for want of jurisdiction in the court over it and the subject-matter of the action. This demurrer was sustained and, appellant electing to stand by his complaint, judgment was accordingly rendered against him for cost; and the decision of the court in sustaining the demurrer is the sole error assigned and relied upon by appellant to secure a reversal.

The facts averred in the complaint disclose that the ditch, out of which the controversy in this action arises, was established by the board of commissioners of Cass county in 1891, under the provisions of an act of the legislature entitled "An Act concerning drainage under specified conditions," approved March 7, 1891. See Acts 1891, p. 455, section 5690, Burns' R. S. 1894 (4317c, Horner's R. S. 1897, and sections following). The county surveyor appears to have been appointed by the board as engineer to superintend the construction of the ditch, as authorized by the statute; and appellant entered into a contract with this official, as such superintendent, whereby he, under a written contract, agreed to construct that part of the drain apportioned to his lands for a price mentioned in the contract, the work to be performed in the manner stipulated in the report of the viewers and to the acceptance of said engineer, and it was further stipulated that the terms of payment should "be as the law provides." The complaint substantially alleges that appellant has completely constructed the part of the improvement allotted to him according to the terms of the contract, and that said work has been accepted by said engineer, and that there is due him, and wholly unpaid, the sum of $ 600, and he has demanded payment thereof from said board, and given it an opportunity to settle with him. All of which, it is alleged, the board has refused and neglected to do. It is further averred that, under the provisions of the statute in controversy, bonds to the amount of $ 13,000 were sold in order to obtain money to defray the expenses incident to the construction of the ditch, and that the money so realized was received by the county treasurer and that $ 1,000 of that amount still remains in the hands of that official subject to and under the control of appellee. Appellant further shows by his complaint that, after the completion of the job awarded to him, he applied to the engineer appointed by appellee for the "necessary voucher or final estimate certificate," in order that he might present the same to the county auditor, and thereby receive from the latter a warrant on the county treasurer for the payment of $ 600, the amount alleged to be due him under his contract. The engineer, it appears, refused to issue a certificate for the amount demanded, but offered to give one for $ 106, provided it was accepted by appellant, in full of all demands for the work performed, which offer appellant rejected and thereupon, it is alleged, he appeared before the board of commissioners and presented and disclosed to it all the facts in the case and demanded payment for the $ 600 due him. The board, it seems, offered to issue to him an order for $ 106 upon the treasurer of the county, to be in full compensation for the work which he had performed, which amount he refused to accept, and the board thereafter made an order allowing him $ 104.94, payable only out of the ditch assessments when an amount sufficient thereof was collected. Appellant further alleges in his complaint that he is not seeking to reach any general fund of the county under the control of the board of commissioners, but that said commissioners, as trustee, hold in their hands and have under their control the money, to wit, $ 1,000, arising out of the sale of said bonds for the payment of the cost of the construction of the improvement, and that he is only seeking to compel the board to account to him for said money and pay him the amount due for the work performed under his contract.

The theory of appellant's complaint, as well as the contention of his learned and eminent counsel, is that the contract under which the work in controversy was performed was made with the appellee in its corporate entity, and that in such capacity it must be held to be a trustee of the fund created by the sale of the bonds, and, as such trustee, ought to be required to account to him for an amount thereof sufficient, at least, to pay him for the services rendered. The written contract, however, which is set out in the complaint, discloses upon its face that it was entered into by and between appellant and the county surveyor, who, as averred, was appointed by the board to let the contracts for constructing the ditch, and to superintend the construction of the work. The theory and contention of appellant that the contract in question was with the board of commissioners is neither sustained by the facts in the case nor by the provisions of the statute in dispute. Section 8 of the act expressly provides that the board of commissioners shall "direct the surveyor or engineer, who helped to make the apportionment, or some other competent surveyor or engineer," to attend at the time and place of letting the construction of the ditch, and receive bids therefor and make contracts with the lowest responsible bidders and take bonds from the contractors for the performance of the work undertaken by each.

In the case of Studabaker v. Studabaker (Ind. Sup.), 152 Ind. 89, 51 N.E. 933, we were called upon to consider and interpret, to an extent, the identical statute now involved, and we in that case held, in effect, that the question as to the ultimate completion of the ditch, as an entirety, was one for the determination of the board of commissioners, upon the final report of the engineer appointed, and that this question when presented by this report, as it should be, was one that any landowner affected by the ditch might challenge by an exception to the report and was entitled to a hearing before the board of commissioners upon that question, and others properly arising out of the exceptions filed. The statute on its face, is, to an extent, at least, vague and uncertain, and is open to construction. It does not profess to expressly define all the duties which its makers intended should be imposed on the board of commissioners, neither all of those which it was intended should be discharged by the engineer appointed to superintend the construction of the improvement. By the provisions of the first section, the board of commissioners of any county, on presentation of the required petition upon the part of landowners, at any regular or called session, may cause to be located and constructed any ditch of the length of five miles and over.

The improvement contemplated under the law, when completed, in no sense can be said to belong to the county. The board of commissioners in its corporate entity is not a trustee of the work, and certainly has no proprietary interest therein. The ditch, when completed, may be said properly to belong to the taxing district, or the landowners whose lands have been benefited thereby, and taxed for its construction.

The county commissioners, under the law, simply act as a board before whom the necessary proceedings, leading up to its location and final construction, are instituted and conducted. This statute expressly empowers the board to issue bonds which the county treasurer is authorized to sell without expense to the county, to the highest and best bidder, for the purpose of raising money to pay and discharge the cost and expenses growing out of the location and construction of the ditch. This money constitutes a fund in the hands of the treasurer for this purpose, and the payment of these bonds is secured by the money derived from the tax assessed against the lands benefited, which is made a lien thereon, in like manner as other taxes; and such tax, when collected, constitutes a fund which must be applied to the payment of the bonds, principal and interest, and the law forbids that it be applied or converted to any other purpose. See sections 12 and 13 of the act in controversy. As the county has no proprietary...