The Board of Commissioners of White County v. Gwin

• Decision Date: 23 January 1894
• Docket Number: 16,776
• Citation: 36 N.E. 237,136 Ind. 562
• Parties: The Board of Commissioners of White County v. Gwin, Sheriff, et al
• Court: Indiana Supreme Court

36 N.E. 237

136 Ind. 562

The Board of Commissioners of White County v. Gwin, Sheriff, et al

No. 16,776

Supreme Court of Indiana

January 23, 1894

From the White Circuit Court.

The judgment is reversed, with instructions to the trial court to grant a new trial.

W Guthrie, W. S. Bushnell, R. P. Davidson and J. L. Lewis, for appellant.

J. H Gould, G. R. Eldridge, E. B. Sellers and W. E. Uhl, for appellees.

OPINION

McCabe, J.

Suit to enjoin the appellees, the sheriff, auditor and treasurer of said county, and Charles Pearce and Thomas Morgan contractors, from carrying out a certain contract entered into by said Gwin, as sheriff of said county, under the order of said circuit court on one side, and said Pearce and Morgan on the other, by which it was claimed by the appellant, that the old court house of the county was being, or about to be, demolished, and substantially a new court house was to be erected instead of the old at a cost of $ 32,087.50. While it was claimed on the other hand that the carrying out of the contract was only making needed repairs of the court room.

There is really no material controversy about the facts, but the main dispute is about the law that governs the case.

It is alleged in the complaint, and the evidence shows, that on the 16th day of May, 1892, the White Circuit Court made and entered a finding and order condemning the court room as unsafe and unfit for further use in the following words:

"The circuit court, being duly advised, finds, that the court room in the court house of this county is so out of repair that it is unsafe longer to hold the sessions of court therein; that the plastering on the ceiling is loose and liable to fall upon persons in the court room engaged in business before this court; that the jury room is both unsafe and unfit for occupancy, and jurors, while deliberating, endanger their health and lives while remaining therein; that the walls of the court room are cracked; that the records of this court are not protected, and are in danger of loss by fire, and the papers in causes pending are also in danger of loss by fire and otherwise; that papers in cases disposed of, and which constitute part of the records of this court, are kept in a damp and insufficient vault, where they are mildewing and rotting, and will be lost unless removed from the place where they are now kept; that there is insufficient room for the library, and no chambers for the judge, nor grand jury room in said court house; that the belfry is unsafe and liable to fall or be blown down, and thus the lives of persons going to and from the sessions of this court are endangered; that the roof over the court room is so out of repair as to utterly fail to keep out rain, many of which defects are patent, and others apparent upon investigation, and that no steps are being taken by the board of commissioners to repair said court room so as to make it fit for use. It is, therefore, ordered by the court that the court room now occupied by this court be, and is, hereby condemned as unsafe and unfit for use until repaired."

On May 26th, 1892, the said court ordered said court room repaired by an order modified on July 11th, 1892, and entered of record as follows:

"In the matter of the circuit court room. The court having heretofore found that the present court room is unsafe and unfit for the transaction of the business of this court, it is, therefore, now ordered by the court that said court room be repaired. And the court now appoints James F. Alexander & Sons, competent architects, to submit plans and specifications for such repairs.

"And comes now said James F. Alexander & Sons, and submits such plans and specifications, which are in these words and figures, to wit: (insert). And the court, having examined the same, and being duly advised in the premises, finds that said court room can be properly repaired according to said plans and specifications, and can not be repaired so that the same will be safe and permanent by the adoption of any other plans and specifications. Wherefore, the court now approves and adopts said plans and specifications, and orders that said court room be repaired in accordance therewith.

"And it is further ordered that James P. Gwin, the sheriff of this county, proceed to cause said repairs to be made, and he shall employ persons to do said work of repairing said court room; such employment to be made in such manner as he shall see fit, and he shall superintend the construction of said repairs. The said repairs shall be completed on or before the 1st day of November, 1892, and upon the completion of said repairs the said sheriff shall report the fact to this court, and also certify the costs of such repairs and the person or persons to whom the costs thereof are due, for allowance, as provided by law. And said court does now appoint James F. Alexander & Sons, architects, to inspect said work and make all proper estimates during the progress of said repairs.

"And comes James P. Gwin, sheriff of this county, and reports to the court that in pursuance to the order in this matter he has employed Pearce & Morgan to make the necessary repairs to the circuit court room hereinbefore ordered, and taken from them a bond conditioned for the faithful performance of said work and the protection of this county against loss, which acts of said sheriff are approved by the court. And all persons are forbidden and prohibited from in any way hindering or delaying the progress of said repairing, and from interfering with said sheriff or any person or persons employed by him or acting under him while engaged in the making of said repairs; and the sheriff is ordered to remove at once from the court room all the furniture and fixtures therein, so that work of repairing may begin immediately."

It is further shown that the court ordered the said sheriff to procure another room in the town of Monticello in which to hold court, which was done, and the court and its records moved out of said court house, and to the building thus secured to be occupied and used as a court room while the work contemplated was being done.

It is further alleged in the complaint, that about the year 1850 the board of commissioners of White county built the court house now in question, in the upper part of which is the court room, giving a minute description of the building, the original cost of which is stated to be but $ 10,000, while the contract price of the work contemplated in the order as reduced by the modification is $ 32,087.50, with a liability under the order allowing the court and architect to change the plans and specifications to reach many thousands of dollars more; that no additions had ever been made thereto, and that said court house, as originally constructed in the public square at the county seat, was a substantial two-story brick court house, 70 feet long by 48 feet wide and 30 feet high, surmounted by a wooden belfry 10 1/2 feet square and 25 feet high, containing on the first floor offices and vaults for the clerks, auditor, treasurer, and recorder, and on the second floor a large and commodious court room and a small jury room, which court room and offices had been continuously used by the officers and courts up to July 12th, 1892; that appellant had repaired it from time to time; that the plans and specifications require the tearing away of so much of the old building as to constitute a practical destruction of it and a remodeling and reconstruction thereof; that the contract was entered into without the plans and specifications having been first filed in the office of the county auditor, and without having advertised for bids.

The material parts of the appellees' answer are as follows:

"That the court house at Monticello, White county, Indiana, was and still is, the only place in said county provided for and as a place of holding the sessions of the circuit court of said county; that on the 16th day of May, 1892, and long prior thereto, said building was out of repair, to wit, that the plastering on the ceiling of the court room was loose and liable to fall upon persons in the court room engaged in business before the White Circuit Court; that the foundation of said building was and is defective in this, to wit, that the part thereof under ground is composed of boulders laid too loosely and not to sufficient depth to give the required strength to sustain the walls built thereon, and because of said defective foundation, the walls of said building have settled and cracked, and will fall to the ground, unless they are strengthened and supported; that, to sustain said walls from below, it is necessary to place thereunder a sound and secure foundation of cut stone and cement, and to hold said walls in place, and prevent them from splitting and falling outward, it is necessary to give them lateral support, by the erection against the same of the additional walls contemplated by the contract of the defendants Pearce & Morgan; that by placing under the walls a new foundation, properly constructed, etc., which can be easily done under the contract of Pearce & Morgan * * without removing or in anywise impairing said walls, and by the erection of said additional walls, said building would be given sufficient strength, and securely held in place, and that unless said walls are so strengthened and supported as aforesaid, it would be impossible to make the repairs that are necessary to the court room, which occupies the second story of said building, and which is the only room provided for the holding of the circuit court of said county; that because of the insecure and dilapidated condition of the walls of said court room, hereinbefore mentioned, the same is unsafe and dangerous, in...