Ness v. Bd. of Com'rs of Marshall Cnty.
| Decision Date | 05 April 1912 |
| Docket Number | No. 22,195.,22,195. |
| Citation | 98 N.E. 33,178 Ind. 221 |
| Parties | NESS v. BOARD OF COM'RS OF MARSHALL COUNTY et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marshall County; Moses B. Lairy, Judge.
Action by Jacob S. Ness against Board of Commissioners of Marshall County and others. Judgment for defendants, and plaintiff appealed to the Appellate Court (91 N. E. 618), which granted a rehearing(93 N. E. 283), and on denial of a second rehearing(95 N. E. 548) the cause was transferred to this court. Reversed, with directions to grant a new trial.
Transferred to the Supreme Court under clause 2 of section 1394, Burns' Ann. St. 1908.
Harley A. Logan, L. M. Lauer, and Eph. Inman, for appellant. Miller & Dowling and Charles Kellison, for appellees.
On January 23, 1909, the board of commissioners of Marshall county presented to the county council of said county a petition and estimate for the repair and remodeling of the courthouse of said county. In this petition it was stated, among other things, that the board proposed to prepare a room in the basement of the courthouse for the county surveyor. Acting upon this petition, the county council made an appropriation as follows: On February 10, 1909, the county council made an order specifically authorizing the construction of three toilet rooms on the second floor, and for rewiring for electric lighting under the appropriation of $15,000. On June 5th, said council made a further order specifically authorizing the repair of the windows, under the appropriation of $15,000, provided the whole cost did not exceed the whole amount of the appropriation. Acting upon these various appropriations, the board of commissioners on March 1, 1909, employed architects and caused plans and specifications to be prepared for the repairs and changes that were to be made, except for decorating the courtroom, which plans and specifications were duly filed in the auditor's office, as required by law. On March 2, 1909, the board of commissioners of said county made an order fixing the date when the plans should be placed on file, and as a part of the order provided that “the advertisement shall state that in case the old boiler after test shall show that it is in good condition, no new boiler will be purchased, but, if after test is made and the boiler is shown not to be in good condition, then bids on new boiler will be considered.” At a subsequent meeting of the board of commissioners, June 7th was fixed as the date on which bids would be received, and the order provided “that the board advertise for bids on the repair of the courthouse, as per the plans and specifications now on file, except the old boiler is to be used, and may be transferred to some other part of the basement.” The published notice of the letting also stated, “Old boiler to be used.” The specifications divided the work into two parts, which included under one or the general contract everything shown on the plans and in the specifications, except the heating, the plumbing, and the electric wiring, which were to be bid on separately, but let as another contract. The general specifications embraced construction of a surveyor's room in the basement, as a part of the general contract. It was also provided that bidders in bidding upon the general contract should “bid separately” upon the specifications for construction of a surveyor's room, remodeling windows, and decoration of the courtroom; also bids in the alternative for wood and tile floor and wood or metal roofing. The bids for heating, plumbing, and electric wiring were separate. These instructions were set out in the published notice to bidders, which also stipulated that each bid should be accompanied by a noncollusion affidavit, as required by section 5897, Burns 1908. The auditor prepared separate blank forms to be furnished possible bidders in four sets; one for the general work under the specifications, and one each for the steam heating, for the electric wiring, and for the plumbing. There were several bidders on each item of the general contract, except the eighth, which was for decorating the courtroom. Appellee O'Keefe used the form furnished by the auditor, except as to the eighth item he added, “On design to be submitted $300.” After the general bid, he added the words, “This bid and bond is filed conditional that I am awarded all of the work under the general specifications.” He also bid on the wiring, plumbing and heating. At the close of each of his bids on wiring and plumbing, he added the words, “This bid conditional upon being awarded all of the work,” and in his bid as to the heating he added the words “using old boiler and new valves.” O'Keefe also filed a noncollusion affidavit following section 5897, Burns 1908; the other bidders filed affidavits conforming to section 5959, Burns 1908. The bids of O'Keefe were accepted, and one contract entered into with him June 8, 1909, for all the work, and this action brought June 18th by appellant as a taxpayer to enjoin the performance of the work under that contract, and from paying for it.
It is clear that none of the other bidders could have any standing, because of the failure to file affidavits under section 5897, as notified, instead of 5959, as they did. Being a statutory requirement, it could not be waived. All persons dealing with public officers or those exercising statutory powers are bound to ascertain for themselves that the law is complied with. Davis v. Board, 165 Ind. 262, 74 N. E. 1091, 6 Ann. Cas. 468;Board v. Gillies, 138 Ind. 667, 38 N. E. 40;Rissing v. City of Ft. Wayne, 137 Ind. 427. 37 N. E. 328;Lund v. Board (1910) 47 Ind. App. 175, 93 N. E. 179;Zorn v. Warren Scharf Co., 42 Ind. App. 213, 224, 84 N. E. 509;Board v. Pashong, 41 Ind. App. 69, 83 N. E. 383;Silver, Burdett & Co. v. State Board. 35 Ind. App. 438, 72 N. E. 829;Wrought Iron, etc., Co. v. Board, 19 Ind. App. 672, 48 N. E. 1050; Throop Public Officers, §§ 551, 556.
It is urged that O'Keefe's bid is defective for the reason that it is claimed that it should also have contained the statement that he had no agent present at the bidding. We think that position untenable.
It will be seen that there is a difference between sections 5897 and 5959, supra, and while the proceeding is statutory, and one who seeks to avail himself of its provisions must bring himself within its terms, yet, if he complies with the statute, he has done all that he is called upon to do.
[1] Section 5959 applies generally to matters within the jurisdiction of county councils and boards of commissioners, but section 5897, a later section, applies specifically to repairs of courthouses, and while a strict construction should be required in the interest of the public, and the securing of honest competition, and the prevention of collusion or fraud, section 5897 only requires affidavits by the “bidder and each of his agents or representatives present at the time of filing such bids.”
The affidavit covers the case where there are no representatives or agents present at the time and the bidder is present, by requiring the affidavit to show that the forbidden thing has not been done directly or indirectly. A bidder might be present himself and have agents or representatives present, none of whom had done the prohibited thing; but if an absent agent or representative has done the prohibited thing, the affidavit required would make each of the parties making it guilty of perjury, by virtue of the act of the absent one, in the prohibition of the thing by such indirection as well as by direction.
There was no appropriation for a surveyor's office, yet in the general specifications, and in the specifications for heating, the work on a surveyor's office was provided for and bid upon under the general contract. There were no specifications for decorating the courtroom. No argument or citation of authority is necessary to show that neither could be undertaken, as being clearly in excess of the powers of the board.
It is next insisted that the words added by O'Keefe to his bid under the general specifications, and after his separate bid on wiring and plumbing, and in his bid on heating in which he added “using old boiler and new valves,” rendered the bids and contract invalid, as being contrary to the specifications, and as being an entire contract with no separate bids, for the alleged reason that the conditions added by him makes each of his bids conditional on his being awarded the...
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