Kraus v. Lehman
| Decision Date | 15 May 1908 |
| Docket Number | 21,212 |
| Citation | 84 N.E. 769,170 Ind. 408 |
| Parties | Kraus v. Lehman et al. [*] |
| Court | Indiana Supreme Court |
Original Opinion of February 18, 1908, Reported at: 170 Ind 408.
Appellant in this case and also appellant in the appeal of Macy v. Board, etc. (1908), post, 707, have both petitioned for a rehearing in the respective cases. They unite in a joint presentation of the reasons and arguments for a rehearing, hence the questions as the same are herein determined upon the petition now under consideration will control in Macy v. Board etc., supra.
Appellant expressly waives the reconsideration of the constitutional validity of the act of 1899 (Acts 1899, p. 73, § 5903 Burns 1908) "concerning the construction of courthouses," and predicates his right to a rehearing (1) upon the ground that we erred in sustaining the petition of appellees to transfer the cause from the Appellate Court to the Supreme Court under the second subdivision of § 1394 Burns 1908, Acts 1901, p. 565, § 10; (2) on the omission or failure of the court to decide certain propositions at the former hearing. We take up these questions in their order.
Counsel argue that the petition filed by appellees to transfer the case from the Appellate Court was insufficient, for the reason that it did not state the particular grounds relied upon for transfer. If this were true, then appellant should have raised that objection while the petition for transfer was pending. It is too late now to make the objection, and in no event could any deficiency in the petition to transfer the case afford appellant ground for a rehearing. In passing, however, we may suggest that the petition in question assigned as grounds for transfer: (1) That the opinion of the Appellate Court contravened a ruling precedent of the Supreme Court; (2) that a new question of law was involved and decided erroneously. The petition further stated that, "for more particular statements of grounds relied upon, appellees make the following statement." Following this a part of the opinion of the Appellate Court was set out to disclose wherein ruling precedents of the Supreme Court had been contravened, etc. An examination of the opinions given by the Appellate Court in the decision of this cause, both at the original hearing and upon the petition for rehearing, fully disclosed that ruling precedents of the Supreme Court had been contravened. The cause was transferred, not for the purpose of overthrowing the statute involved because of its invalidity, but for the reason that the opinions of the Appellate Court contained wrong declarations of legal principles upon the points therein decided, declarations which contravened ruling decisions or precedents of the Supreme Court. Barnett v. Bryce Furnace Co. (1901), 157 Ind. 572, 62 N.E. 6; Craig v. Bennett (1901), 158 Ind. 9, 62 N.E. 273; Klein v. Nugent Gravel Co. (1904), 162 Ind. 509, 70 N.E. 801.
When the case was transferred the judgment of the Appellate Court was vacated, and the cause was then pending in the Supreme Court in like manner and to all intents and purposes as though it had been appealed directly to the latter court.
The two questions which counsel for appellant assert were passed at the former hearing, without being given consideration, are: First, that the contract between the Board of Commissioners of the County of Miami and Lehman and Schmitt (appellees herein), for the preparation of the plans and drawings for the new court-house, was entered into on December 18, 1905, at a time when the board was not lawfully in session. The second question relates to the validity and availability of appropriations made by the county council. Under the contract made on December 18, 1905, between the board of commissioners and appellees, in regard to their fees and services as architects, the allowance of $ 2,550 to appellees was made by the board on February 5, 1906. From the order of the board making this allowance appellant Kraus appealed to the circuit court, and from the judgment of the latter he appealed to the Appellate Court. Upon the question, that at the time the board made the contract with appellees it was not legally in session, the following are the material facts as disclosed by the record: On December 8, 1905, the Board of Commissioners of the County of Miami was holding its regular December session, as authorized by section fifty of an act "concerning county business" (Acts 1899, p. 343, § 5967 Burns 1908). This section provides that "in every county in this State there shall be a regular session of the board of county commissioners, beginning on the first Monday of each calendar month, and continuing only so long as the necessary business of such session absolutely requires." On December 8 the record of the board's proceedings, as entered by the county auditor, recites: "It is hereby ordered by the board that they meet in special session on December 15, 1905, and the board adjourns until court in course." It appears that the board again convened on December 15, 1905, and some action was taken in regard to the plans for the new court-house. The caption of its proceedings, as shown by the record entered on the latter day, is: "Commissioners' Court in Regular Session, the same being December 15, 1905." The record further discloses that after convening on Friday, December 15, the board adjourned until December 16. On the latter day the board met and adjourned until Monday, December 18, 1905. At the meeting on this latter date the board and appellees entered into the contract in controversy for the preparation of the drawings and plans for the court-house, and for superintending its construction. Appellees, according to this contract, were to be paid for their fees and services by a percentage as therein fixed and provided. The board again adjourned from day to day until December 20, 1905. At this meeting the board appears to have discovered that the order of adjournment on December 8, 1905, had been incorrectly entered, and, for the reasons as stated, it corrected the same by ordering that the entry of the proceedings had on said December 8, 1905, and the adjourning order as made on that day, be entered nunc pro tunc as follows: On December 21 the board again convened pursuant to adjournment, and approved the bond of appellees.
The insistence of counsel for appellant is that the contract between the county and appellees, entered into on December 18, 1905, at the meeting of the board of commissioners held on that day, was void, for the reasons, (1) that "the board of commissioners having adjourned on December 8, 1905, 'until court in course,' was without power to reconvene for any purpose whatever until the first Monday in January, 1906, unless convoked by the auditor; (2) that the order of the board on December 8, 1905, that it meet in special session December 15, 1905, was inoperative and void; (3) because under section fifty of the county reform law the monthly session of the board terminates with its adjournment without day, and continues only so long as the necessary business of such session absolutely requires."
It must be remembered that appellant does not make a direct, but a collateral, attack on the proceedings and order of the board of commissioners. There is nothing going to show that the sessions or meetings of the board in controversy were held in defiance of law. The December regular session of the Board of Commissioners of the County of Miami, under § 5967 supra, might have been continued until the close of that month, provided the necessary business of the session absolutely required. As to whether the necessary business before the board required the continuance of the term until the close of the month was a question for the...
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