Davis Const. Co. v. Bd. of Com'rs of Boone Cnty.

• Decision Date: 28 October 1921
• Docket Number: No. 23867.,23867.
• Citation: 192 Ind. 144,132 N.E. 629
• Parties: DAVIS CONST. CO. v. BOARD OF COM'RS OF BOONE COUNTY et al.
• Court: Indiana Supreme Court

192 Ind. 144

132 N.E. 629

DAVIS CONST. CO.

v.BOARD OF COM'RS OF BOONE COUNTY et al.

No. 23867.^*

Supreme Court of Indiana.

Oct. 28, 1921.

Appeal from Circuit Court, Hamilton County; Ernest E. Cloe, Judge.

Action by the Davis Construction Company against the Board of Commissioners of Boone County, in which one Bundy appeared and filed demurrer. Judgment for defendant, and the plaintiff appeals, and defendant assigns cross-error. Affirmed.

John Rynerson and Geo. W. Long, both of Columbus, and Floyd G. Christian and Ralph H. Waltz, both of Noblesville, for appellant.

Roy W. Adney, of Lebanon, William L. Taylor, of Indianapolis, and Ralph P. Bundy, of Zionsville, for appellee.

EWBANK, J.

This was an action by the appellant, based upon Acts 1919, c. 93, p. 475 et seq. The petition by which it was commenced was addressed to and filed with the board of commissioners of Boone county, Ind., and alleged that appellant had entered into a contract with said board on August 8, 1916, to construct a certain “hard-surface” road for the price of $26,495, had expended $9,000 in grading and building culverts, under the provisions of the contract, and would be required to pay out an additional sum of $3,000 in excess of the total contract price to complete the road; and that the losses already sustained and those threatened had not been and would not be caused by any negligence or mismanagement of the petitioner, but were caused wholly by conditions arising out of and existing after the declaration of war by the United States against Germany and by reason thereof.

The petition was denied by the board of commissioners, and the cause was appealed to the circuit court, and then removed by change of venue to Hamilton county, where the appellee Bundy, a resident taxpayer, freeholder, and voter of the township by which the cost of the proposed road was to be paid, appeared and filed a demurrer to the petition, for the alleged reason (among others) that the act of 1919, upon which it was based, is unconstitutional because of being class legislation. This demurrer was overruled, and the appellee Bundy excepted, An issue of fact was joined and the cause was tried, and judgment was rendered denying the relief asked and ordering that appellant should pay the costs, from which judgment this appeal was taken.

[1] The appellee Bundy has assigned as cross-error the overruling of his demurrer to the petition. Any and all defects in the petition not pointed out by the memoranda filed with the demurrer must be deemed waived, and we shall assume, without deciding, that it was sufficient to entitle appellant to relief if the act of 1919 is valid.

It is first objected that a resident freeholder and taxpayer of the township in which the proposed highway was located and against which the taxes to pay for it will be assessed and levied, not being a party to the contract, has no standing in court to deny the constitutionality of the statute under which the board of commissioners was asked to release appellant from its contract.

[2] But if appellant is bound by contract to complete the road for a certain price, and it will cost more than that amount to finish building it, any additional sum for which a contract to complete it might be let to appellant or another bidder after annulment of the contract in suit would have to be paid by the taxpayers of the township. Burns 1914, §§ 7725, 7726; Burns' Supp. 1921, § 7723g.

And a taxpayer clearly has sufficient interest to question the constitutionality of the statute under which it is sought to impose a burden upon the property of a taxing district in which he lives and owns property subject to assessment, where the action seeking to impose a burden under such statute remains otherwise undefended. Zuelly v. Casper, 160 Ind. 455, 67 N. E. 103, 63 L. R. A. 133;Miller v. Jackson Tp., 178 Ind. 503, 99 N. E. 102 and 111.

The act of 1919 provides that upon the filing of a verified petition by the contractor, his heirs, personal representatives, or assigns, setting forth certain facts, and upon proof of such facts at a hearing-

“All boards of county commissioners which have entered into contracts for the construction of gravel, stone or other highways under and pursuant to the provisions of sections 62 to 90, inclusive [Burns 1914, § 7711 et seq.] of the act of the General Assembly entitled ‘An act concerning highways,’ approved March 8, 1905, and of acts amendatory thereof or supplemental thereto, or of bridges, and which contracts were entered into prior to June 1, 1917, and have been performed in part, *** may relieve the petitioner from further performance of the contract and shall pay for the work and labor done, and materials furnished for that part of the contract which has been completed, at the contract price.” Burns' Supp. 1921, § 7723d; Acts 1919, c. 93, p. 476, §§ 1, 4.

Other sections of the same act provide that new contracts for the completion of the work may be let and additional bonds sold to provide funds. It was further provided that-

“This act shall not be construed as repealing or conflicting with any of the provisions of said act concerning highways, approved March 8, 1905, or with any other laws concerning the improvement of highways, or the letting of contracts for such improvements, or the issue and sale of bonds to pay the cost thereof, but as supplemental thereto.” Burns' Supp. 1921, § 7723j; Acts 1919, c. 93, p. 479, § 10.

The sections of the statute referred to are that part of the act which provides for grading, draining, and paving highways by taxation levied upon the property of the township in which the highway is located, or the property of the townships along the line of which it runs.

But the act under consideration seems not to apply to contracts for the construction of improved roads on township lines by taxation levied upon the townships affected, under the act of 1909, as amended (Burns 1914, § 7739 et seq.), nor to contracts for building such roads on county lines by taxation upon the townships affected (section 7740 et seq.), nor to contracts for building them by assessments of benefits levied upon all lands and lots within two miles of the highway, outside of...