Wrought-Iron Bridge Co. v. Bd. of Com'rs of Hendricks Cnty .

• Decision Date: 05 January 1898
• Citation: 48 N.E. 1050,19 Ind.App. 672
• Parties: WROUGHT-IRON BRIDGE CO. v. BOARD OF COM'RS OF HENDRICKS COUNTY et al.
• Court: Indiana Appellate Court

19 Ind.App. 672

48 N.E. 1050

WROUGHT-IRON BRIDGE CO.

v.BOARD OF COM'RS OF HENDRICKS COUNTY et al.¹

Appellate Court of Indiana.

Jan. 5, 1898.

Appeal from circuit court, Marion county; Edgar A. Brown, Judge.

Action by the Wrought-Iron Bridge Company against the board of county commissioners of Hendricks county and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Daniel Wait Howe, for appellant. Thomas J. Cofer, Cash C. Hadley, and W. R. Harrison, for appellees.

ROBINSON, C. J.

Appellant sued appellees for a balance due for the erection of a bridge. The first paragraph of the complaint is based upon the theory that the bridge is built across a stream forming the boundary line between Hendricks and Morgan counties, and that the bridge was built pursuant to the act regulating the building of county line bridges. The second paragraph proceeds upon the theory that the stream over which the bridge was built crossed the boundary line between the two counties at right angles, and that the bridge was built under the power incident to that vested in the two counties to construct highways along county boundary lines. The third paragraph is in assumpsit for work and materials done and furnished. A demurrer for want of facts by the Hendricks county board to the first paragraph of the complaint was sustained. Upon issues joined judgment was rendered in appellees' favor over appellant's motion for a new trial.

The questions presented by this appeal are whether there was a substantial compliance by the boards of the two counties with the statute providing for the building of bridges across streams forming county boundary lines, and whether, in such a case, upon failure to comply with the statute, there may be a recovery on a quantum meruit for benefits accepted and used by the two counties. The power to build bridges is not incident to the power to establish highways. Complete provision is made by statute for building bridges, whether they are wholly within one county or across boundary lines. The original statute on the subject of building bridges on county boundaries went into force May 14, 1869. Acts Sp. Sess. 1869, p. 27. It included what are now sections 3251-3255, Burns' Rev. St. 1894 (sections 2880-2884, Horner's Rev. St. 1897). Section 3251 (2880), supra, provides that: “Whenever public convenience shall require the erection or repair of any bridge across any stream forming the boundary line between two counties within this state, upon application therefor to the board of county commissioners of either county, such board of county commissioners may, if they think it expedient, declare their willingness to aid in the erection or repair of such bridge by resolution or order, and shall cause notice thereof to be given to the board of county commissioners of the other county interested therein. And whenever it may be ascertained that the board of county commissioners of both counties have made such orderor resolution, such board of county commissioners shall, by concurrent resolution, cause a survey and estimate to be made, submitting plans and specifications therewith, by some competent person, to be presented to their respective boards of county commissioners at some specified time and place at or near the site of such contemplated bridge, when such boards of county commissioners shall meet in joint session to estimate and determine the kind of bridge which shall be erected, and the manner and time when payments shall be made for the erection or repair of such bridge.” The above section was amended in 1881 by adding a proviso which is not in question in the case at bar. By sections 3252-3255 (2881-2884), it is made the duty of the boards while in joint session to appoint one or more superintendents, who are, under the regulations of the two boards, to have full control and supervision of the erection or repair of such bridge; making it the duty of the boards when in joint session to make such appropriation for their respective counties as will make an equitable proportion to each county of the whole cost of construction or repair of such bridge in proportion to the taxable property of the counties, and providing that each county shall be the owner of an interest in such bridge. It is argued by counsel for appellee that the pleading fails to show that any order or resolution was made, or notice thereof given; that any plans or specifications were made, and submitted to the boards, and bids received thereon, except the plans and specifications submitted by the different bridge companies with their bids; that any superintendent was appointed or any appropriation was made for the construction of the bridge. The notice contemplated is a notice by the board taking the initiatory steps to the board of the other county, and the purpose of such notice would be to convene the boards in joint session. It is not provided how or in what manner this notice shall be given, and, as the two boards did meet in joint session, it will be presumed that some kind of notice was given. See Board of Com'rs of Fountain Co. v. Board of Com'rs of Warren Co., 128 Ind. 295, 27 N. E. 133. The boards of commissioners of the two counties had the power to build a bridge across a stream on the boundary line between the two counties. They had this power only by virtue of a statute prescribing the manner in which action should be taken in the matter. It is not claimed by appellant that the method prescribed by the statute was followed, but that one equally as good was adopted, and that there was a substantial compliance with the statute. When the two boards attempted to contract for the construction of the bridge, they were exercising a naked statutory authority, and they had no other powers in the matter except such as are expressly or impliedly granted by the statute. McCaslin v. State, 99 Ind. 428;Brown v. Ogg, 85 Ind. 234; Arnold v. Gaff, 58 Ind. 343; Key v. Ostrander, 29 Ind. 1;Williamson v. Doe, 7 Blackf. 12;Board of Com'rs v. Templeton, 51 Ind. 266. In the case of Board of Com'rs v. Gillies, 138 Ind. 667, 30 N. E. 40, the board entered into a contract for the purchase of stationery for the county, without having complied with the statute requiring that the board should receive statements of the county officers of the probable amount of stationery necessary, the notice to bidders, and the reception and examination of bids. In holding the contract void, the court said: “The statements by the officers, the notice to bidders, and the reception and examination of the bids are the essence of the law. If these are disregarded as being merely directory, the statute disappears. The statutes of the state are not to be wiped out in that manner. Boards of county commissioners are themselves but the creatures of the legislature, and they must pursue and exercise their powers in strict compliance with the letter and spirit of the statute. It is theirs to obey, not to disregard,...