Royer v. State ex rel. Brown

• Decision Date: 05 April 1916
• Docket Number: No. 9255.,9255.
• Citation: 112 N.E. 122,63 Ind.App. 123
• Parties: ROYER et al. v. STATE ex rel. BROWN.
• Court: Indiana Appellate Court

63 Ind.App. 123

112 N.E. 122

ROYER et al.

v.STATE ex rel. BROWN.

No. 9255.

Appellate Court of Indiana, Division No. 1.

April 5, 1916.

Appeal from Circuit Court, Starke County; Harley A. Logan, Special Judge.

Suit by the State of Indiana, on relation of Nathaniel Brown, against Miles Y. Royer and others. Judgment for plaintiff, and defendants appeal. Affirmed.Reidelbach & Reidelbach and John M. Spangler, all of Winamac, and Wm. J. Reed, of Knox, and Henry A. Sters, of South Bend, for appellants. Fansler & Foskett, of Logansport, and Peters & Peters, of Knox, for appellee.

FELT, P. J.

This suit was brought by appellee against appellants to annul the contract for the construction of a public drain, to enjoin the collection of assessments for the improvement, and the payment of money by the drainage commissioner to the contractor, appellant Royer. The complaint is in one paragraph, and is based on the act of 1907. Acts 1907, p. 490; sections 3866 to 3877, Burns 1914. It was answered by general denial and a plea of estoppel, to which a reply in general denial was filed. On due request the court made a special finding of facts on which it stated its conclusions of law. The errors assigned and presented by the briefs call for a decision of the questions relating to the right of the appellee to bring the suit and the correctness of the conclusions of law stated by the court on the finding of facts.

[1] Appellee contends that no questions are presented by the briefs for the reason that the points and authorities are not applied to any specific ruling of the trial court relied on for reversal. There is much merit in the criticism, but appellee has to some extent supplied the omissions of appellants by the statements in his brief, so that we may consider the questions above indicated without disregarding the rules for the preparation of briefs. Geisendorf v. Cobb, 47 Ind. App. 572-577, 94 N. E. 236;Chicago, etc., Ry. Co. v. Dinius, 180 Ind. 596-626, 103 N. E. 652;Schrader v. Meyer, 48 Ind. App. 36, 95 N. E. 335;Inland Steel Co. v. Smith, 168 Ind. 245-252, 80 N. E. 538.

The substance of the finding of facts as far as material to the questions presented is as follows: The relator, Nathaniel Brown, is a taxpayer of Van Buren township, Pulaski County, Ind., and owns real estate abutting upon a public drain known as the “John F. Taylor ditch,” which land is assessed for the construction of said ditch. Jerome B. Newman was on October 6, 1910, duly appointed drainage commissioner or superintendent of construction of said ditch, which drain was duly established on October 6, 1910. Said Newman duly qualified as such drainage commissioner and gave notice that he would receive bids for the construction of said ditch on November 5, 1910, and thereafter entered into a contract therefor with Miles Y. Royer for $6,490. Norman S. Denny, Edward X. Boyles, and said Royer each bid on said ditch. After making some bids Denny and Boyles retired and held a consultation, and Denny thereafter caused Royer to join them, and thereupon Denny and Royer executed their note for $25, payable to Boyles, and delivered it to him. That Denny had agreed with Boyles to give him the note in consideration of Boyles refraining from bidding further on the ditch. That Royer had knowledge of the consideration for the note and of the aforesaid arrangement between Denny and Boyles. “That the defendant Miles Y. Royer, Norman S. Denny, and Edward X. Boyles conducted themselves in the presence of the drainage commissioner as competitive bidders, and that the agreements and understandings between them were collusive and fraudulent, and made for the purpose and intention of limiting and restricting the bidding of the John F. Taylor ditch, a public work. That Edward X. Boyles and Norman S. Denny stopped bidding by reason of the above agreement, and Miles Y. Royer was awarded the contract.” That after the contract was let Denny claimed to be a partner with Royer, and performed some labor on the ditch. That Denny's assessment on the ditch was $181, and Royer made a full settlement with him for that amount, in which Denny agreed to and did pay Boyles $25 for said note. That the relator, Nathaniel Brown, was present when the contract was let to Royer on November 5, 1910, and on April 2, 1911, obtained knowledge of the facts relating to the letting of the contract in the manner aforesaid. That he consulted attorneys about the same in June, 1911, and began this suit on September 11, 1911. That he resided about a quarter of a mile from the ditch, and when he commenced the suit knew that 2,160 feet of 24-inch tile and 3,800 feet of 20-inch tile had been placed in the ditch, and also knew that within 30 to 60 days after the contract was let the commissioner purchased tile for the ditch at a cost of $3,500. That on April 2, 1911, the main line of the ditch was completed, and about one-half of the cost of the whole ditch had then been expended. That Brown made no objection or complaint to Royer or said Newman until September, 1911. That the ditch was completed according to contract and specifications on April 2, 1912, and was accepted by the commissioner in charge of its construction. That Newman, the drainage commissioner, unless restrained, will make payments on the contract for the construction of said ditch out of assessments therefor against the real estate shown in the report on said ditch.

The conclusions of law on the finding of facts are as follows:

“(1) The contract let by Jerome B. Newman, commissioner, to Miles Y. Royer is void as against the principal for which said commissioner was acting.

(2) That the enforcement of said contract should be enjoined.

(3) That the principal for which said commissioner was and is acting is not liable on said contract, and that Jerome B. Newman, commissioner, should be enjoined from making payments on said contract.”

The appellants each separately excepted to each conclusion of law. The suit was brought under the statute. Acts 1907, p. 490; sections 3866-3877, Burns 1914. The portions of the statute involved here provide that:

“Sec. 3. Any and all schemes, designs, understandings, plans, arrangements, contracts, agreements or combinations to limit, restrain, retard, impede or restrict bidding for the letting of any contract for *** public work, directly or indirectly, or to in any manner combine or conspire to stifle or restrict free competition for the letting of any contract for *** public work, are hereby declared illegal, and any person who shall directly or indirectly engage in any scheme, design, understanding, plan, arrangement, contract, agreement or combination to limit, restrain, retard, impede or restrict bidding for the letting of any contract for *** public work, *** shall be deemed guilty of a misdemeanor, and upon conviction shall be fined. ***

Sec. 4. If there shall be collusion or fraud of any kind or character among the bidders at the letting of any contract or work as provided in section 3 of this act, then the principal who lets the contract or work, or for whom the contract is let, shall not be liable for such letting [or on account of such letting] or on account of said contract, or work, or any part thereof, to the successful bidder to whom the contract or work was let, *** if such successful bidder be a party, directly or indirectly, to such collusion or fraud, on such contract, or letting, or for any work, materials furnished, or thing done in discharge thereof, or with reference thereto, and if before notice of such collusion or fraud, payment or partial payment thereon or therefor shall have been made, such principal may at any time within five years from the date of the last payment made thereon or therefor in an appropriate action in any court of competent jurisdiction in this state recover the full amount of such payment or payments with interest to date, of judgment thereon, and attorney's fees, against such successful bidder, and such recovery shall not be a bar to any action, either civil or criminal, brought against such bidder on account of any violation of this act on behalf of the state by the Attorney General, a prosecuting attorney or otherwise.

Sec. 5. It shall be the duty of the Attorney General and of the prosecuting attorney of each judicial circuit to institute appropriate proceedings to prevent and restrain violations of the provisions of this act or any *** act or the common law relating to the subject matter of this act. All such proceedings shall be in name of the state of Indiana upon relation of the proper party. The Attorney General may file such proceedings, either in term time or in vacation, upon his own relation, or that of any private person, in any circuit or superior court of the state, without applying to such court for leave, when he shall deem it his duty so to do. Such...