Michigan City v. Brossman

• Decision Date: 14 December 1937
• Docket Number: 15686.
• Citation: 11 N.E.2d 538,105 Ind.App. 259
• Parties: MICHIGAN CITY v. BROSSMAN.
• Court: Indiana Appellate Court

11 N.E.2d 538

105 Ind.App. 259

MICHIGAN CITY v. BROSSMAN.

No. 15686.

Appellate Court of Indiana, in Banc.

December 14, 1937

Walter R. Arnold, of South Bend, and Laurence Cannon, of Michigan City, for appellant.

Walter C. Williams, of Michigan City, and Victor R. Jose and Baker & Daniels, all of Indianapolis, for appellee.

DUDINE Presiding Judge.

This was an action instituted by appellee Charles Brossman against appellant city of Michigan City for damages for an alleged breach of a contract by which appellant city allegedly employed appellee to prepare plans and specifications for and to superintend the construction of a sanitary sewer on Sheridan Beach, a section of Michigan City, Ind.

The issues were formed by an amended complaint in one paragraph and an answer in general denial. A demurrer to the complaint was overruled.

The cause was submitted to the court for trial without a jury. The court made a special finding of facts and stated conclusions of law thereon, all of which were in favor of appellee. Judgment having been rendered in accordance with the conclusions of law, that appellee recover $3,676.16 from appellant, this appeal was perfected. The errors assigned are alleged error in overruling the demurrer to the complaint and alleged errors in each of the conclusions of law.

The complaint alleged, among other facts, that:

"On or about the 14th day of March, 1927, the City of Michigan City, by and through its Business Manager and by and through the Commissioners of the City of Michigan City adopted a resolution providing for the construction of a certain project known as the Sheridan Beach Local District Sanitary Sewer. * * *

"That pursuant to such resolution the City of Michigan City, by and through its then City Manager A. R. Couden, on or about the 7th day of March, 1927, entered into a written agreement with this plaintiff by the terms of which this plaintiff undertook and agreed to perform said engineering services for such sewer system so proposed to be constructed at and for the consideration of 7 1/2% of the total cost of all the work. * * *

"That at the time of the execution of such agreement the City of Michigan City, pursuant to the provisions of the Statutes, had determined to operate under what was then the City Manager Law, and that pursuant to such law had organized and that the said Couden was the then duly elected, acting and authorized City Manager of the defendant City of Michigan City.

"That pursuant to the foregoing contract the plaintiff prepared plans, specifications and estimates for the work provided for by the City of Michigan City for the construction of such sewer system, and submitted the same for the approval of the City Manager and the City Council of the City of Michigan City, providing in such approved estimates the sum of $7,500.00 for engineering expenses.

"That thereafter the said City of Michigan City, by and through its Manager and City Commissioners, on or about the 26th day of November 1929, finally approved said plans and specifications for the construction of said sewer system. * * *"

The complaint also alleged that said sewer was constructed, and "that this plaintiff performed the engineering services * * * under the terms of said contract alleged herein. * * *" Said contract was set out in the complaint.

The complaint prayed a judgment in the sum of $20,000.

The demurrer to the complaint charged that the complaint did not state facts sufficient to constitute a cause of action.

In support of the assigned error in overruling the demurrer to the complaint, appellant contends that the statute under which the alleged "commission form" of city government existed was declared unconstitutional by our Supreme Court in Keane v. Remy et al. (1929) 201 Ind. 286, 168 N.E. 10, and that, therefore, said statute did not in fact create any office of "city commissioner" or "city manager," which offices said statute purported to create, and there being no de jure offices of "city commissioner" and "city manager," the alleged governing body of the city of Michigan City had no official standing or capacity, and could not bind the city by the alleged contract. The only authority cited by appellant in support of said contention is Norton v. Shelby County (1886) 118 U.S. 425, 6 S.Ct. 1121, 1125, 30 L.Ed. 178.

Chapter 218, Acts 1921 (p. 594), which created said "commission form" of city government, was declared unconstitutional by our Supreme Court in Keane v. Remy et al., supra, in 1929, after the alleged contract was allegedly accepted by the "city commission" and "city manager" of Michigan City.

Appellant does not contend that a municipal corporation cannot be bound by the contracts of de facto officers, but contends that there can be no de facto officers unless the offices which they claim to fill exist de jure; in other words there can be no de facto officers without de jure officers. This question has not been decided by the courts of review of this state.

Norton v. Shelby County, supra, supports appellant's said contention. That was an action upon bonds issued by the board of county commissioners of Shelby county, in Tennessee, under and by virtue of an act of the Legislature of that state which purported to create such board of county commissioners and purported to give it power to issue bonds on behalf of such county. After the bonds were issued and bought by Norton, said statute, creating such board of commissioners and giving it such powers, was declared unconstitutional by the Supreme Court of Tennessee, and that court held that actions of such boards were utterly void. Upon appeal of said cause, it was contended in the Supreme Court of the United States that: "If the act creating the board was void, and the commissioners were not officers de jure, they were nevertheless officers de facto, and that the acts of the board as a de facto court are binding upon the county." The United States Supreme Court said, with reference to such contention:

"This contention is met by the fact that there can be no officer, either de jure or de facto, if there be no office to fill. As the act attempting to create the office of commissioner never became a law, the office never came into existence. Some persons pretended that they held the office, but the law never recognized their pretensions, nor did the supreme court of the state. * * *

"The doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. * * * For the good order and peace of society their authority is to be respected and obeyed until, in some regular mode prescribed by law, their title is investigated and determined. It is manifest that endless confusion would result if in every proceeding before such officers their title could be called in question. But the idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an 'officer' who holds no office, and a public office can exist only by force of law. * * * An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it imposes no no office; it is, in legal contemplation, as inoperative as though it had never been passed."

In that case the court, with reference to State v. Carroll (1871) 38 Conn. 449, 9 Am.Rep. 409, says: "The opinion of Chief Justice Butler is an elaborate and admirable statement of the law, with a review of the English and American cases, on the validity of the acts of de facto officers, however illegal the mode of their appointment." The United States Supreme Court in the Norton Case, supra, incorporates into its opinion and does not criticize, but apparently approves, a definition of an officer de facto, which definition is stated in State v. Carroll, supra, and which definition, so far as it is pertinent to this appeal, is as follows: "An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office are exercised-- * * * "Fourth. Under color of an election or an appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such."

The United States Supreme Court then discusses cases cited in State v. Carroll, supra, and says: "It is evident, from a consideration of these cases, that the learned chief justice, in State v. Carroll, had reference, in his fourth subdivision [of the definition of a de facto officer] * * * to the unconstitutionality of acts appointing the officer, and not of acts creating the office."

The United States Supreme Court says, further, that State v. Carroll, supra, "in no way militates against the doctrine we have declared, [that there can be no officer de facto, if there is no de jure office] but is in harmony with it."

It is our opinion that the Carroll Case, supra, does militate against said doctrine, and that the fourth subdivision of the definition of a de facto officer, as stated in said case and set forth above, refers to unconstitutional laws which purport to create offices as well as unconstitutional laws which purport to create officers. See Lang v. Bayonne (1907) 74 N.J.L. 455, 68 A. 90, 15 L.R.A. (N.S.) 93, 122 Am.St.Rep. 391, 12 Ann.Cas. 961, and State v. Pooler (1909) 105 Me. 224, 74 A. 119, 24 L.R.A. (N.S.) 408, 134 Am.St.Rep. 543, to the same effect.

In the Carroll Case, supra, the court says:

"We come now to the second and more important proposition advanced in

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