Works v. Parke Cnty.

• Decision Date: 15 June 1888
• Citation: 115 Ind. 234,17 N.E. 593
• Court: Indiana Supreme Court
• Parties: Bass F. & M. Works v. Parke County et al.

115 Ind. 234

17 N.E. 593

Bass F. & M. Works

v.Parke County et al.

Supreme Court of Indiana.

June 15, 1888.

Appeal from circuit court, Parke county; Joshua Jump, Judge.

Action by the Bass Foundry & Machine Works against the board of commissioners of Parke county and William H. Meyers upon a contract for furnishing a county building. A demurrer to the amended complaint was sustained, and plaintiff appeals.

Bell & Morris, for appellant. A. F. White, for appellee.

Mitchell, J.

This was a suit by the Bass Foundry & Machine Works, of the city of Fort Wayne, against the board of commissioners of Parke county. The questions involved arise upon the ruling of the court in sustaining a demurrer to the plaintiff's amended complaint. The facts upon which the action is predicated, as set forth in the complaint, are in substance as follows: Prior to the 11th day of December, 1883, the board of commissioners of Parke county, after having duly adopted plans and specifications, and taken the other preliminary steps required by law in that behalf, advertised the letting of a contract, and requested bids for the construction of a court-house and jail for Parke county. The contract was regularly let to William H. Meyers at a specified price; he having been the lowest responsible bidder, and having given bond as required by law. The contract as finally executed provided, in case the work should be unreasonably delayed or abandoned by the contractor, that the board of commissioners should have the right to enter upon the work, and procure such necessary labor and material as might be required to carry on and complete the contract, and charge the cost thereof to the contractor. After having entered upon the execution of his contract and partially completed the buildings, the contractor, Meyers, abandoned the work, and declared his inability to resume it. He had previously sublet the contract for the iron-work to the plaintiff, having agreed to pay therefor $32,000, and he had also become indebted to it on that account, for work already done, in the sum of $10,000. It is alleged in the complaint that, on the date above mentioned, the board of commissioners, pursuant to the right therein reserved, declared the contract with Meyers forfeited on account of his previous abandonment of the work, and that the commissioners thereupon gave notice of their purpose to proceed to the completion of the work, and to charge the excess of the cost thereof over the contract price to the contractor, and to hold him and his sureties liable therefor. It is further alleged that the commissioners agreed with the plaintiff that, in consideration that it would go on and complete the iron-work for the court-house and jail according to its contract with Meyers, the board would become responsible for and pay the amount then due from the contractor, and to become due on the contract; and that, in pursuance of such agreement, the plaintiff had proceeded and performed work and furnished materials in the construction and completion of the court-house and jail so left uncompleted by the contractor, which work and materials, it is alleged, were reasonably worth the sum of $17,000. It is averred that the board of commissioners accepted and approved the work, and took possession of the court-house and jail, and that they have ever since used and occupied them, and that, although often requested so to do, the board has failed and refused, and still fails and refuses, to pay the plaintiff. An itemized account is filed with the complaint. Except as it may be inferred from the averment that the board had failed and refused to pay the plaintiff, it does not appear whether the claim had been filed with the auditor, and presented to the board of commissioners and disallowed. The court sustained a demurrer to the complaint. Two questions are presented by the ruling on the demurrer: (1) Assuming that the facts stated were otherwise sufficient, was it necessary, in order to make the complaint good, and give the circuit court jurisdiction of the claim, that it should have been averred therein that the claim sued on had been filed with the county auditor, and presented to the board of county commissioners and disallowed? (2) Is the board of commissioners of Parke county liable to the plaintiff for the work done and materials furnished in completing the court-house and jail under the facts disclosed in the complaint? It should be remarked that the causes of demurrer assigned were that the complaint did not state facts sufficient to constitute a cause of action, and “that the circuit court has no original jurisdiction of said cause of action.”

The statute regulating the filing and prosecution of claims against counties has undergone some comparatively recent modifications, which require to be briefly considered. Under the statute in force from May 6, 1853, to May 31, 1879, county commissioners were forbidden to allow any claim against the county unless the claimant should first file a detailed statement of the items and dates of charge, and unless the truth of the charge was known to the commissioners, until such competent proof was adduced in favor of the claim as was required in other courts. Provision was made for taking an appeal from all decisions for allowances, except in certain specified cases, within 30 days, or, in case a claim was disallowed in whole or in part, the claimant, instead of appealing, might, at his option, bring an action against the county. Sections 5761-5763, Rev. St. 1881. While this statute remained in force, the uniform holdings were that a suit might be brought against the county in the circuit court in the first instance, without presenting the claim to the county commissioners for their consideration. The rulings were distinctly to the effect that it was not necessary either to aver or prove that the claim sued on had been presented to the board of commissioners and disallowed before the commencement of the action, but that a claimant might present his claim to the board, and appeal in case it was disallowed in whole or in part, or that he might, at his option, commence suit against the county in the first instance. Board v. Ford, 27 Ind. 17;Board v. Wright, 22 Ind. 187;Commissioners v. Holman, 34 Ind. 256,Jameson v. Board, etc., 64 Ind. 524. In the absence of restrictive legislation, those cases correctly assume that the liability to be sued in a court of general common-law jurisdiction on matters arising out of contract is one of the inherent attributes of a municipal corporation. By the act which took effect May 31, 1879, it was provided, in substance, that any person who should thereafter have a legal claim against any county should file it with the county auditor, to be by him presented to the board of county commissioners. The commissioners were required to examine into the merits of the claim, and in their discretion allow it in whole or in part, as they might find it just and owing. An appeal was allowed to the circuit court to any person feeling himself aggrieved by any decision of the board. Sections 5758, 5759, 5769, Rev. St. 1881. The fourth section of the act of 1879 (section 5760, Rev. St. 1881) reads as follows: “No court shall have original jurisdiction of any claim against any county in this state in any manner except as provided in this act.” It was uniformly held that the above-mentioned act repealed section 5771, Rev. St. 1881, being section 10 of the act of 1852, by implication, in so far as that section allowed the bringing of an independent action against a county at the option of a claimant whose claim had been disallowed by the board of commissioners, and that the effect of section 4 of the act of 1879 was to deprive all the courts of the state, except boards of county commissioners, of original jurisdiction of claims against counties. State v. Board, 101 Ind. 69;Board v. Maxwell, Id. 268; Pfaff v. State, 94 Ind. 529;Board, etc., v. Hon, 87 Ind. 356. By an act approved March 9, 1885, (section 3 of the act of 1879,) section 5769, Rev. St. 1881, was amended by substantially re-enacting that section, and sections 9 and 10 (sections 5770, 5771, Rev. St. 1881) of the act of 1852. This amendment necessarily restored the statute, with the interpretation which it had received by this court, as it was prior to the act of 1879, unless section 5760, which provided that no court, except boards of commissioners, should have original jurisdiction of any claim against a county, remained in force after the re-enactment of section 5771 in the amendment of 1885. The re-enactment of this last section certainly restored the right to bring an original action against the county in case the board of commissioners disallowed a claim in whole or in part. Did it restore the right to bring...