Kraus v. Lehman

• Decision Date: 18 February 1908
• Docket Number: 21,212
• Parties: Kraus v. Lehman et al. [*]
• Court: Indiana Supreme Court

83 N.E. 714

170 Ind. 408

Kraus v. Lehman et al. ^[*]

No. 21,212

Supreme Court of Indiana

February 18, 1908

Rehearing Denied May 15, 1908, Reported at: 170 Ind. 408 at 421.

From Cass Circuit Court; John S. Lairy, Judge.

Claim by Israel Lehman and another against Miami county. From an allowance by the board of commissioners, Milton Kraus appeals. From a judgment for claimants in the circuit court he again appeals. Transferred from Appellate Court under subd. 2, § 1394 Burns 1908, Acts 1901, p. 565, § 10.

Affirmed.

Bailey & Cole, Antrim & McClintic and Robert J. Loveland for appellant.

J. F. Lawrence, Cox & Andrews, McConnell, Jenkines, Jenkines & Stuart and Merrill Moores, for appellees.

OPINION

Jordan, J.

An act of the legislature, approved February 21, 1899, is involved in this appeal (Acts 1899, p. 73, § 5903 Burns 1908). The act in question is entitled: "An act concerning the construction of court-houses in counties having a population of more than 25,000 as shown by the last preceding United States census, and declaring an emergency." Section one, omitting the enacting clause, is as follows: "That it shall be unlawful for the board of county commissioners of any county having a population of more than 25,000, as shown by the last preceding United States census, to order or contract for the construction of any court-house in such county unless a petition therefor be filed by at least 500 reputable resident freeholders of said county. Any order or contract made in violation of the provisions of this act, shall be null and void: Provided, that the provisions of this act shall not apply to the relocation and erection of court-houses pursuant to the provisions of an act passed over the Governor's veto March 9, 1895. Acts 1895, p. 217." Section two declares an emergency.

On August 9, 1905, a petition praying for the construction of a court-house on the public square in the city of Peru, the county-seat of Miami county, was presented to the board of commissioners of said county. This petition upon its face purported to be signed by 573 reputable resident freeholders of said county. The following are some of the reasons assigned therein to show the necessity for building a court-house: "(1) The present court-house is fast falling into a condition of decay, and is now almost untenantable. There is a constant danger of some part of it giving away, and its condition constitutes a menace to the safety of all who are required to occupy it or resort to it for the transaction of business. To repair it would cost a large sum of money, and it would still be an old court-house, antiquated in design, incommodious in its arrangement, and utterly insufficient in size for present needs. (2) The present court-house has not room to accommodate with offices more than one-half the county officers who are required to keep an office. The county sheriff, county assessor, county surveyor, county superintendent and county coroner are all without offices in the court-house. Nor is there any room for the county commissioners, for library, for witnesses, for consultation nor rooms for the judge in connection with the court room, and the only jury rooms are the mansard roof, from which a jury could not hope to escape in case of fire below. No alterations or remodeling of the present structure could remedy these defects or provide the additional rooms necessary for the proper transaction of the county business."

After this petition had been considered by the board of commissioners, the board entered of record its finding as follows: "Having duly considered said petition, do find that there is in said Miami county a population of more than 25,000, as shown by the last preceding United States census of 1900; that said petition is duly signed by more than 500 reputable resident freeholders of said county, and that on account of the inadequate condition of the present structure to meet the wants of the public, and the decaying conditions of the present court-house in said county, a public necessity exists for the construction of a new, modern building and court-house." Upon this finding the board of commissioners ordered that a new court-house be constructed on the site of the old one, and that estimates therefor be submitted to the county council of said county at its next regular session in September, 1905, stating the amount required for the construction of said new court-house. On December 18, 1905, after ordering the construction of the court-house, the board of commissioners appears to have entered into a contract with appellees, as architects, to prepare plans and specifications for the construction of the new court-house, and to superintend and direct the building thereof. At its February session, 1906, the board of commissioners of said county ordered that the claim of $ 2,550, presented by appellee for services in preparing preliminary plans and drawings under the contract hereinbefore mentioned, be allowed. Appellant, Milton Kraus, a resident taxpayer and citizen of the county, upon making the required affidavit, appealed to the Miami Circuit Court from the order of the board allowing appellees' claim. After the case on appeal had reached the latter court, the cause was venued to the Cass Circuit Court, wherein appellant filed an answer to appellees' claim. This answer, among other things, alleged that Miami county has been and is a county within the State of Indiana, having a population of more than 25,000; that on August 10, 1905, a petition was filed by 400 resident freeholders of said county, and no more, praying that the necessary steps be taken for the erection of a modern court-house in Peru, Indiana. It is further averred "that said board of commissioners, on said day, having considered said petition, made and entered of record a false, erroneous and void entry and order to the effect that such petition was signed by more than 500 reputable resident freeholders of said county, and ordered that a new court-house be constructed on the site of the old one." It was further alleged in the answer "that the total number of names signed to said petition was 573; that of this number 175 were not at the time of the presentation of said petition resident freeholders of said Miami county, and were not, therefore, lawful petitioners; that of this number twenty-seven had each affixed their names twice to said petition, and had been counted twice in making up said 573 names. Eighty names signed were the names of nonresidents of Miami county. Eight were the names of persons who were dead at the time of the presentation of said petition, and 131 were names of signers who were not resident freeholders of Miami county, Indiana, at said time, leaving but 398 qualified signers to said petition."

Appellees successfully demurred to this answer, and appellant refused to plead further, but elected to abide by his answer. Thereupon judgment was rendered against him on the demurrer.

From this judgment he prosecutes this appeal, and assigns as error the ruling of the Cass Circuit Court in sustaining the demurrer to his answer.

The theory of appellant, as advanced by his counsel, is that inasmuch as it appears that Miami county has a population of over 25,000, as shown by the census of 1900, the act of 1899, supra, is applicable thereto; that, in the absence of the petition required by said act, the order made by the board of commissioners of said county for the construction of the court-house in question is absolutely void; that the board had no authority to enter upon the construction of a court-house or make any contracts in respect thereto; that, therefore, the contract made between the board and appellees is void and no claim for services thereunder is valid or enforceable against the county. Counsel assert that because appellant alleged in his answer that no such petition as the one required by the act in question was presented to the board of commissioners, signed by the number of freeholders as prescribed by the statute, the board therefore was, under the law, deprived of all power to order the construction of the court-house in question, and hence "the fact, that the board entered of record a false finding, to the effect that the petition so filed was signed by more than the requisite number of reputable freeholders, cannot operate to confer on it the power denied by the statute." Counsel further say that "while such a finding might operate to save the board's decision from being held absolutely void as against a collateral attack, if it is to be considered as exercising judicial functions in said matter, still in a case where its acts and decisions are directly attacked by an appeal, as in this case, the false finding which the board has entered of record cannot avail to confer on it an authority denied to it by the statute."

By reason of the view which we entertain in respect to the validity of the statute involved, it is not essential that we take up the consideration of appellant's right to assail as he does under his answer, the order of the board of commissioners for the construction of the court-house in question. It may be said that the record in this case presents the question in regard to the constitutionality of this statute, although its validity has not been controverted in the briefs or arguments of counsel for appellees. Nevertheless appellant, under his assignment of errors, alleges that there is manifest error disclosed by the record in the ruling of the trial court in sustaining the demurrer to his answer, and he therefore demands a reversal of the judgment. Appellees allege that there is no error, consequently the burden is cast upon appellant to establish by the record the error which he has assigned. Appellees are...