Lane v. State ex rel. Taylor

Decision Date11 March 1896
Docket Number1,656
Citation43 N.E. 244,14 Ind.App. 573
PartiesLANE ET AL. v. STATE, EX REL. TAYLOR, SUPERINTENDENT
CourtIndiana Appellate Court

From the Clay Circuit Court.

Judgment affirmed.

G. W Paul, M. W. Bruner and P. O. Colliver, for appellants.

Cavins & Cavins, for appellee.

LOTZ J. GAVIN, C. J., dissents.

OPINION

LOTZ, J.

The facts of this case as they appear from the complaint and the special findings of the court are substantially as follows:

In the year of 1890, the board of commissioners of Greene county duly established and ordered constructed a free gravel road extending from the town of Bloomfield to the town of Lyons in that county. Robert R. Taylor was duly appointed and qualified as the superintendent of said road. The superintendent gave due notice of the letting of contracts for said work and in October, 1890, he let the contract for the construction of said road to the firm of Lane and Walls which firm was composed of the appellant Patrick H. Lane and one Ransom H. Walls, and such contractors, together with the other appellants, as their sureties, executed a bond payable to the State of Indiana, to secure the performance of said contract, in which bond it was stipulated that Lane and Walls should construct the road in all respects according to the plans and specifications adopted by the board of commissioners, and in accordance with the terms and conditions specified in their contract, and that Lane and Walls should promptly pay all debts incurred by them in the prosecution of the work including labor, materials furnished and for board of laborers. It further appears that Lane and Walls entered upon the construction of the road and completed it in accordance with the terms of their contract, and that the board of commissioners has fully paid them the contract price, but that Lane and Walls failed to pay a large number of the laborers and persons who furnished materials in the construction of the road. This suit was brought on the contractors' bond by the State on the relation of the superintendent, to recover the several sums of money alleged to be due to the various laborers and material men.

The appellee recovered a judgment for the sum of $ 2,016.75, of which amount $ 300 was for attorney fees.

The principal questions on this appeal are whether or not the bond covers the liabilities of the contractors to the laborers and material men; and whether or not the appellee's relator was authorized to maintain the action for the benefit of the laborers and material men.

There are two distinct acts authorizing the construction of free gravel roads by boards of commissioners in this State. The act of March 3, 1877, sections 6855 to 6867 inclusive, Burns R. S. 1894 (sections 5104 to 5113, R. S. 1881); and the act of July 18, 1885, sections 6880 to 6898 inclusive, Burns R. S. 1894.

The two enactments create different systems or methods of constructing free gravel roads.

While the two methods are in the main similar, yet in certain respects they are entirely dissimilar. The act of 1887 provides that after the board shall have made the order for the improvement, it shall appoint a competent engineer to superintend the performance and completion of said work, who shall with the approval of the board make contracts for the performance of the work; and in letting the contract the engineer is required to take reasonable security from the contractor for the performance of the contract in the time and manner fixed by the board. Sections 6859 (5095). The act of 1885 provides that after the improvement shall have been ordered the board shall appoint a superintendent for the construction of such work, (section 6910); and it is made the duty of the superintendent to construct the work in accordance with the plans and specifications ordered. In doing this he is authorized to let contracts and is required to take from the contractors a bond with freehold sureties, payable to the State of Indiana, conditioned for the proper performance of the contract within the time and manner prescribed; and on failure of the contractor to comply with the contract the superintendent may bring suit thereon for any and all breaches thereof (section 6911).

A bond given by the contractor under the law of 1887 has been held to be one given to secure the performance of a public or county work, and governed by sections 1235 and 5592, R. S. 1894 (sections 1221 and 4246, R. S. 1881). State, ex rel., v. Sullivan, 74 Ind. 121; Herrod v. State, ex rel. Whistler, 43 N.E. 144. Under these holdings there can be no doubt but that a bond given by the contractor under the act of 1885 is also governed by the same statutes.

It has been the policy of the legislation in this State to secure the persons who perform labor or furnish materials for the betterment of the real estate of another, by giving them a lien thereon, and making the property subject to the payment thereof. But when it comes to public property or property used for a public purpose, it is against public policy to permit it to be executed to pay debts of any kind and the laborer and material men cannot have a lien.

The law, however, has made ample provision for the protection of the persons who perform labor upon or furnish materials for public or county property. Section 5592, supra, requires the board of commissioners in letting any contract for any public or county work to take from the contractor "a good and sufficient bond payable to the State of Indiana, signed by at least two resident freehold securities, which bond shall guarantee the faithful performance and execution of the work * * * and that the contractor * * * shall promptly pay all debts incurred by him in the prosecution of such work, including labor, materials furnished and for boarding the laborers thereon."

The next section 5593 (4247), authorizes any laborer or material man or person furnishing board for the contractor to maintain an action upon the bond after demand made upon the contractor.

A free gravel road constructed under the act of 1885, is as much a public or county work as one constructed under the act...

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