Ness v. Bd. of Com'rs of Marshall Cnty.
| Decision Date | 22 June 1911 |
| Docket Number | No. 7,481.,7,481. |
| Citation | 95 N.E. 548 |
| Parties | NESS v. BOARD OF COM'RS OF MARSHALL COUNTY. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
On petition for further rehearing. Granted and former opinion modified and judgment reversed in part and affirmed in part.
For original opinion, see 91 N. E. 618, and for opinion on first rehearing see 93 N. E. 283.Harley A. Logan and L. M. Lauer, for appellant. E. C. Martindale, Charles Kellison, and Miller & Dowling, for appellee.
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 the rewiring for electric lighting. And on June 5th said council made a further order specifically authorizing the repair and remodeling of the windows, 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, 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 plans and specifications divided the work into four parts-the general contract, the heating, the plumbing, and the electric wiring. Provision was made for the constructionof 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 the surveyor's room, remodeling windows, and decoration of the courtroom; also bids in the alternative for wood and tile floor and metal and tile roofing. The bids for the heating, plumbing, and electric wiring were to be 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 forms with the approval of the board of commissioners for bids to be furnished to possible bidders, in accordance with section 5958, Burns 1908 (section 41, Acts 1899, p. 343). The form for the bid on the general contract was as follows:
Blank Bid for General Contract.
To the Honorable Board of Commissioners of Marshall County.
Gentlemen: We propose to do the remodeling of your Court House according to plans and specifications prepared by Griffith & Fair, Architects, Ft. Wayne, Ind., on the General Contract as follows:
(1) For all the work called for in the plans and general specifications, excepting the new floor for the entire first story, the new roof, the finishing off of the surveyor's office, stairway, etc., to connect the same, changing sash, glass, etc., and fancy decorating.
$
(2) Oak floor as specified for the entire first floor.
$
(3) Terrazzo floor and marble sanitary base.
$
(4) Galvanized iron roof as specified, without any additional sheathing or extra supports.
$
(5) Tile roof as specified with additional sheathing, etc.
$
(6) Surveyor's office finished up in the room where the present boiler is now located.
$
(7) Remodeling windows with new sash, plate glass, etc., according to specifications.
$
(8) Fancy decorating for the court room according to special design submitted, for the sum of.
$
[Signed]
And for the steam heating as follows:
Blank Bid for the Steam Heating.
To the Honorable Board of Commissioners of Marshall County.
Gentlemen: I propose to do the steam heating according to plans and specifications prepared by Griffith & Fair, Architects, Ft. Wayne, Ind. for the sum of
$
[Signed]
The blanks for the bids for the plumbing and for the electric wiring were in the same form as that for the steam heating.
Upon the general contract appellant and Everly & Wallace bid without change, except that appellant did not bid on the eighth specification of said bid for decorating the courtroom. Appellee O'Keefe used the form supplied, but inserted in his bid under the general specifications the words: “This bid and bond is filed conditional that I am awarded all of the work that is to be performed under the general specifications.” He also bid on the eighth specification, “On design to be submitted,” $300. And on the contract for the wiring, heating, and plumbing appellant, Everly & Wallace and the others bid separately on the blanks as prepared and furnished by the auditor, without change or alteration. But appellee O'Keefe inserted after each of said bids the words: “This bid conditional upon being awarded all the work.” And in his bid on the heating contract, before stating the amount, he also inserted the words: “Using old boiler and new valves.” Each of said bidders filed with his bids a noncollusion affidavit, but the affidavits of all but appellee O'Keefe seem to have been made in conformity with section 5959, Burns 1908 (section 42, Acts 1899, p. 361), instead of section 5897, as designated in the notice and required by the statute. The affidavits so filed failed either to include the affidavits of the agents of the bidders or to show that they had no agents present at the letting. Appellee O'Keefe filed a noncollusion affidavit in conformity with section 5897. The contract for all the work was awarded to O'Keefe. The contract for the whole work was entered into on June 8, 1909, and on June 18th appellant instituted this suit, as a taxpayer, seeking to enjoin appellee O'Keefe from performing said contract, and to enjoin the appellee board from paying out any money thereon. Upon final hearing, the court enjoined the performance of the eighth specification, viz., the decoration of the courtroom, but refused to enjoin the performance of the remainder of the contract. Appellant filed bond and took this appeal.
It is insisted that the bids of appellant and the other bidders, except O'Keefe, were properly rejected for the reason that a proper noncollusion affidavit was not filed. Section 5897, Burns 1908, being section 5 of an act of the General Assembly of 1907 (see Acts 1907, p. 582), provides: “No bid for the building or repairing of any courthouse *** shall be received or entertained by the board of commissioners of any county in this state unless such bid shall be accompanied by an affidavit signed and sworn to by the bidder and each of his agents or representatives present at the time of filing such bids”-specifying what statements such affidavits must contain. The provisions of the statute leave no room for construction. The affidavit must include the verified statement of the bidder and his agent, or agents, present at the letting, and, if there be no agent present, this fact must be affirmed and not left to conjecture or speculation.
[1][2] The fact that the form used may have been furnished by the auditor, or that the commissioners or their attorney may have given another and an insufficient reason for rejecting the bid of appellant, in no way corrects or waives the omission of a fact required by the statute.
[3] No proposition is more firmly established than that persons dealing with public officers of limited and statutory powers must, at their peril, ascertain and know for themselves that the law is followed. Rissing et al. v. City of Ft. Wayne, 137 Ind. 427, 432, 37 N. E. 328;Silver, Burdett & Co. v. Ind. State Board, etc., 35 Ind. App. 438, 462, 72 N. E. 829;State ex. rel. v. Stout, 26 Ind. App. 446, 457, 59 N. E. 1091.
[4] Appellant's bid was not defective for failure to bid on item 8, the decoration of the courtroom, for the reason that no specifications or plans therefor were on file with the county auditor, designating the kind or character of the decoration to be furnished.
[5] Nor was the bid of appellee O'Keefe aided by fixing an amount for this item, and adding the words “design to be submitted.” He could not know this or any other statement, supply specifications or comply with the law requiring them to be on file with the auditor, and his contract as to the decoration is therefore invalid.
It is contended that the contract of O'Keefe is invalid because of the statements inserted in his bids; that he did not bid separately on anything, or offer to construct either class...
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Ness v. Bd. of Com'rs of Marshall Cnty.
...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 o......