Pass v. State ex rel. Board of Commissioners of Clark County

• Decision Date: 02 April 1925
• Docket Number: 12,096
• Citation: Pass v. State ex rel. Board of Commissioners of Clark County, 147 N.E. 287, 83 Ind.App. 598 (Ind. App. 1925)
• Parties: PASS ET AL. v. STATE OF INDIANA, EX REL. BOARD OF COMMISSIONERS OF CLARK COUNTY
• Court: Indiana Appellate Court

147 N.E. 287

83 Ind.App. 598

PASS ET AL. v. STATE OF INDIANA, EX REL. BOARD OF COMMISSIONERS OF CLARK COUNTY

No. 12,096

Court of Appeals of Indiana

April 2, 1925

Rehearing denied May 21, 1925. Transfer denied November 5 1925.

From Floyd Circuit Court; John M. Paris, Judge.

Action by the State of Indiana on the relation of the Board of Commissioners of Clark county against William J. Pass and another. From a judgment for plaintiff, the defendants appeal.

Affirmed.

Jewett & Bulleit and Charles E. Henderson, for appellants.

Burdette C. Lutz, for appellee.

OPINION

NICHOLS, J.

Action by appellee on a bond to recover damages for breach of a contract executed in proceedings pertaining to the improvement of a public highway. There was a special finding of facts and conclusions of law in favor of appellee, upon which judgment was rendered against appellant. From this judgment this appeal is prosecuted, the only error assigned being that the court erred in each of its conclusions of law. The facts as appear by the findings, briefly stated and so far as here involved, are that in a proceeding pending before the board of commissioners of Clark county, there was ordered established a highway under what is commonly known as the "three mile gravel road law," and appellant Pass being awarded the work entered into the contract here involved to construct the road for the contract price of $ 7,900, and gave the contractor's bond sued on with himself as principal and his coappellant as surety. The bond was duly approved, but the contractor failed, neglected and refused to perform the conditions of the contract and thereby there was a breach of the bond. On May, 1919, appellant Pass filed with the board of commissioners a petition asking to be relieved from the performance of the contract, under and pursuant to what is known as the "Contractor's Relief Act" passed by the legislature in 1919, see Acts 1919 p. 475. On June 2, 1919 the board of commissioners duly made and entered an order denying the prayer of said petition, and refusing to release the said Pass from the performance of his said contract. He appealed from this order of the board of commissioners to the Clark Circuit Court, but on motion of the board of commissioners, the court rendered judgment dismissing the appeal. From this judgment, there was an appeal to the Supreme Court, but while that appeal was pending in said court, the board of commissioners of Clark county, at its April term, 1920, reconsidered its action and judgment theretofore entered refusing to release said contract, and made its finding that "said order in refusing to release said contractor ought to be annulled, set aside, and held for naught, for the reason that in their judgment, upon a proper and further showing having been made, it appears that the performance of the same will entail losses caused wholly by conditions arising or existing after the declaration of war."

Upon this finding, it entered judgment as follows: "It is therefore ordered, by agreement of the contractor, to dismiss his appeal in the Supreme Court which dismissal shall be, for the purpose of the proceedings now had, treated as taken in conjunction with said proceedings. It is further ordered by the board, that the contract heretofore with said William J. Pass for the construction of said road, be canceled and that said contractor and his sureties, the London and Lancashire Indemnity Company of America, are hereby released from the performance thereof. It is further ordered that all orders made on said 2nd day of June, 1919, in refusing to release said contractor and his sureties from said contract, be and the same are hereby set aside and held for naught."

Thereafter the Supreme Court decided that the said "Contractor's Relief Law" was unconstitutional and invalid, and on January 2, 1922, the board of commissioners made an order that, because of the invalidity of the Contractor's Relief Law, the action of the board of commissioners in releasing appellant Pass from his contract, was illegal and void, and directed the auditor to notify appellants of the board's determination, and that the said contractor should proceed with the performance of his contract. The contractor, however, failed so to do, and on ...