Ness v. Board of Commissioners of the County of Marshall

• Decision Date: 05 April 1912
• Docket Number: 22,195
• Parties: Ness v. Board of Commissioners of the County of Marshall et al
• Court: Indiana Supreme Court

98 N.E. 33

178 Ind. 221

Ness

v.

Board of Commissioners of the County of Marshall et al

No. 22,195

Supreme Court of Indiana

April 5, 1912

Rehearing Denied June 28, 1912, Reported at: 178 Ind. 221 at 232.

From Marshall Circuit Court; Moses B. Lairy, Special Judge.

Action by Jacob S. Ness against the Board of Commissioners of the county of Marshall, and others. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under subd. 2, § 1394 Burns 1908, Acts 1901 p. 565.)

Reversed.

Harley A. Logan and L. M. Lauer, for appellant.

Charles Kellison, Miller & Dowling and E. C. Martindale, for appellees.

OPINION

Myers, J.

On January 23, 1909, the Board of Commissioners of the County of Marshall 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 on this petition, the county council made an appropriation as follows: "That there be appropriated out of the county funds of said county the following sums. * * * For repair of courthouse, including heating apparatus therefor and other necessary repairs, $ 15,000. * * * Said appropriation of $ 15,000 is to be used or expended on the courthouse as follows: Repairing or reroofing, remodeling tower with illuminating dial, painting outside and painting and decorating inside, repairing old floors or putting in new ones." 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 5, 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 on 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 court room, 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 7 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, every thing shown on the plans and in the specifications, except the heating, 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 on the general contract should "bid separately" on the specifications for constructing a surveyor's room, remodeling windows and decorating the court room; also bids in the alternative for wood and tile floor and wood and 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 § 5897 Burns 1908, Acts 1907 p. 580.

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 court room. 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 § 5897, supra; the other bidders filed affidavits conforming to § 5959 Burns 1908, Acts 1899 p. 343, § 42.

The bids of O'Keefe were accepted, and one contract entered into with him June 8, 1909, for all the work, and this action was brought June 18 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 § 5897, supra, as notified, instead of § 5959, supra, 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. State, ex rel., v. Board, etc. (1905), 165 Ind. 262, 74 N.E. 1091, 6 Ann. Cas. 468; Board, etc., v. Gillies (1894), 138 Ind. 667, 38 N.E. 40; Rissing v. City of Fort Wayne (1894), 137 Ind. 427, 37 N.E. 328; Lund v. Board, etc. (1911), 47 Ind.App. 175, 93 N.E. 179; Zorn v. Warren-Scharf, etc., Pav. Co. (1908), 42 Ind.App. 213, 224, 84 N.E. 509; Board, etc., v. Pashong (1908), 41 Ind.App. 69, 83 N.E. 383; Silver, Burdett & Co. v. Indiana State Board, etc. (1905), 35 Ind.App. 438, 72 N.E. 829; Wrought Iron Bridge Co. v. Board, etc. (1898), 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 § 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 on to do. Section 5959, supra, applies generally to matters within the jurisdiction of county councils and boards of commissioners, but § 5897, supra, a later act, applies specifically to repair 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, § 5897, supra, 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 on under the general contract. There were no specifications for decorating the court room. 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 make each of his bids conditional on his being awarded the entire work bid on. It is manifest that the plain purpose of the statute is to place all bidders on an equality, and secure competition in fact. The general specifications provided that the "general contract will include all the work shown on the plans and in specifications, with the exception of the steam heating, plumbing and electric wiring. The steam heating, plumbing and electric wiring will be let under one contract and under separate specifications." Other provisions are that "separate bids" will be received on heating, wiring and plumbing, and on different items of the general contract.

The board of commissioners before advertising for bids determined to use the old boiler. The...