State ex rel. Licking Tp. v. Clamme

• Decision Date: 10 March 1922
• Docket Number: No. 11168.,11168.
• Citation: 80 Ind.App. 147,134 N.E. 676
• Parties: STATE ex rel. LICKING TP. v. CLAMME et al.
• Court: Indiana Appellate Court

80 Ind.App. 147

134 N.E. 676

STATE ex rel. LICKING TP.

v.CLAMME et al.

No. 11168.^*

Appellate Court of Indiana, Division No. 2.

March 10, 1922.

Appeal from Circuit Court, Blackford County; Frank W. Gordon, Judge.

Action by the State of Indiana, on relation of Licking Township, as a taxing district, against Perry W. Clamme and others. Judgment for defendants when plaintiff refused to plead further after demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.U. S. Lesh, Atty. Gen., D. F. Stansbury, of Indianapolis, W. B. Gemmill, Asst. Atty. Gen., and A. G. Emshwiller, of Hartford City, for appellant.

Simmons & Simmons, of Hartford City, for appellees.

DAUSMAN, C. J.

This action was instituted by the Attorney General in the name of the state of Indiana, on the relation of Licking township, as a taxing district, in Blackford county, against Perry W. Clamme and his bondsmen. A demurrer was sustained to the amended complaint which consisted of three paragraphs, the appellant refused to plead further, and judgment was rendered for the appellees accordingly.

In so far as necessary to an understanding of the question presented by this appeal, the facts averred in the first paragraph of the amended complaint are as follows:

“On June 4, 1917, the board of commissioners entered into a written contract with the defendant Perry W. Clamme. By the terms of the contract the defendant (hereinafter designated contractor) agreed to construct a macadam road in Licking township, which road was established on the petition of Samuel A. Harden et al. and is known as Cherry Street Free Macadam Road. The contractor agreed to construct the road in accordance with the profile, plans, specifications, and report, which had been duly approved and adopted by the board. The contractor further agreed that in the construction of the road he would furnish all materials, labor, tools, implements, teams, and everything necessary for the construction of the road. In consideration for the construction of the road, the contractor was to receive the sum of $29,532, to be paid in accordance with the terms of the contract. The contractor filed with the auditor of the county a bond in which it was provided that if he should be awarded the contract for the construction of the road, he would promptly enter into a contract with the board for the construction of the road and would well and faithfully perform the contract in all respects; the construction bond to be in the sum of $63,000. The construction bond was executed accordingly, with the four other defendants as sureties therein, and was duly accepted and approved by the board. A copy of each of the following named documents was filed with and made a part of the amended complaint: The contract; the report of the viewers and engineer, containing the specifications, the plans and profile; and the construction bond. The contractor entered upon the work, and, as the work progressed, one Fred Glancy, the engineer appointed for the work, made partial estimates of amounts due the contractor. Warrants were issued for the amounts named in the estimates and were paid to the contractor. On December 3, 1917, the engineer made a final estimate showing the amount due the contractor, and filed the estimate with the board. The final estimate was allowed by the board, and thereupon the auditor issued a warrant thereon which was paid to the contractor. The total amount of said warrants equaled the full contract price for the construction of the road.

The proceedings for the construction of the road were pursuant to the provisions of ‘an act concerning highways,’ approved March 8, 1905, and pursuant to all acts amendatory thereof and supplemental thereto. Licking township was the taxing district for the purpose of providing funds with which to pay for the road. Bonds to the amount of $35,000 were sold for that purpose, and the taxing district has paid part of the bonds and is liable for the payment of the balance.

The contractor did not faithfully perform the contract, in this: The contract provided that there should be used 86 feet of 36-inch cast-iron culvert pipe, but the contractor used only 62 1/2 feet of that kind of pipe and substituted for the balance concrete culvert pipe. He did not excavate all the dirt required to be excavated, but left 1,235 cubic yards unexcavated; and the reasonable cost of excavating the balance is $494. He did not use 205 tons of Stanolind paving asphalt required by the contract, but used only 166.8 tons thereof, leaving a balance of 38.2 unused; and the value of the unused asphalt was $702.88. The contract required that the asphalt should be applied at a temperature of not less than 300° fahrenheit, and that immediately after the application thereof the surface should be covered with dry limestone screenings, after which it should be rolled; but he failed to do the rolling immediately, and in some instances delayed from one to five days, and the delay resulted in rendering the asphalt valueless as a binder.

(The injurious effects resulting from the contractor's failure to comply with the contract are set out at length, and it is averred that the total damage suffered by the relator is $7,393.33.)

The board of commissioners in allowing the various estimates acted through mistake; the sworn statements of the engineer, as to the completion of the road, were made by mistake; and the board acted on the sworn statements, believing them to be true when they were not, thereby accepting and receiving the road by mistake.

By authority of the ‘state examiner of the state board of accounts,’ one Fosdick and one Major, ‘field examiners of said department,’ and Abraham L. Donaldson, ‘civil engineer of said department,’ an examination was made of the road; and a report of the examination was made, signed, and verified in quadruplicate by said ‘field examiners and civil engineer.’ The report was filed with the state examiner, and after inspection by him, one copy was filed with the contractor, one copy with Blackford county, and one copy delivered to the Governor, who transmitted his copy to the Attorney General; and thereupon the Attorney General has instituted this action against the contractor and his bondsmen, to secure to the taxing district the damages suffered by it from the failure of the contractor to construct the road according to the contract.

The plaintiff asks that the settlement made between the contractor and the board of commissioners be set aside; for judgment in the sum of $8,000; and for all other proper relief.”

The second paragraph of the amended complaint is on the theory that the acceptance of the road was procured by fraud. In other respects it is like the first. The substance of the averments relating to the fraud is as follows:

“That one Fred Glancy, engineer, and one J. B. McEldowney, superintendent of construction, did not give proper attention to their duties, but relied on the contractor; that the contractor falsely represented to them that the road had been completed according to the contract; that by his representations he procured them to execute and file certificates of completion; that he fraudulently represented to the board that the road had been completed according to the contract; that the engineer and superintendent executed the certificates of completion in reliance upon the fraudulent representations of the contractor, and that the board accepted the road relying upon his fraudulent representations; that the contractor fraudulently concealed the facts; that the defects did not become apparent for some time after the road was accepted; and that when the defects became apparent it was too late for the relator or any taxpayer to file objections with the board or to appeal from the order of the board.”

The third paragraph does not differ materially from the second.

With commendable fairness and official propriety the Attorney General concedes that this action cannot be maintained unless authority to institute and maintain it is conferred by the statute relating to the powers and duties of the administrative body commonly called the “state board of accounts.” The Attorney General further concedes that if the state board of accounts had no power to inspect the highway, then the action of that body conferred on him no authority to institute the action; and in that event the demurrer was rightfully sustained.

The state board of accounts was created by an act entitled:

“An act concerning public accounting and reporting and supervision thereof, and providing penalties for the violation of this act.” Acts 1909, p. 136.

The first section of that act was amended in 1915 to provide that the chief examiner may be removed only after a hearing on charges preferred. Acts 1915, p. 138.

In the year 1911 the Legislature enacted another statute entitled:

“An act concerning the collection and recovery of public funds of the state of Indiana and of counties, townships, cities and towns therein, and other matters properly connected therewith.”

This act consisted of fourteen sections, and related exclusively to proceedings to be instituted and conducted by the Attorney General and prosecuting attorneys for the recovery of public funds from delinquent public officers, except as to the following particulars: Section 1 related to the appointment of field examiners and their compensation; section 13 repealed all conflicting laws; and section 14 declared an emergency. Acts 1911, p. 195.

In the year 1913 (Laws 1913, c. 249) the Legislature amended section 7 of the act of 1911. That section, originally and as amended, related only to the fees to be allowed prosecuting attorneys for recovering public funds by suit or compromise.

In the year 1915 the Legislature passed an act entitled:

“An act providing for a state board of certified accountants, defining their powers and duties, and providing for the examination and licensing of certified accountants.”

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