Yelton v. Plantz

• Decision Date: 10 January 1950
• Docket Number: No. 28560,28560
• Parties: YELTON et al. v. PLANTZ.
• Court: Indiana Supreme Court

Page 540

89 N.E.2d 540

228 Ind. 79

YELTON et al. v. PLANTZ.

No. 28560.

Supreme Court of Indiana.

Jan. 10, 1950.

Wm. J. Reed, Knox, Paul E. Reed, Knox, for appellant.

Charles C. Campbell, Rochester, Murray McCarty, Rochester, Brown & Brown, Rochester, Schortemeier, Eby & Wood, Robert K. Eby, Indianapolis, for appellee.

STARR, Judge.

The appellants brought this action as resident taxpayers of Aubbeenaubbee Township, Fulton County, Indiana, against the appellee as trustee of both the civil and school townships, seeking to enjoin him from carrying out a contract for the construction of a schoolhouse in said township. From a finding and judgment in favor of the appellee, this appeal is taken. A special finding of facts and conclusions of law thereon were rendered, upon which finding and conclusions the judgment herein appealed from was rendered.

The allegations in the appellants' amended complaint on which this cause was tried are substantially as follows: That appellants are taxpayers of said township and that the appellee is the trustee thereof; that on July 18, 1946, the appellee adversed for bids for the construction of a school building for said township according to the plans and specifications then on file in the office of the appellee; that the plans and specifications were for the erection and completion of a school building and gymnasium, including all plumbing and electrical equipment therefor. The notice for bids called for three separate contracts--one for the construction of the building proper--one for the installation of the plumbing--and one for the installation of the wiring and electrical fixtures; that bids were received on each contract; that the total of the low bids was approximately $21,000 in excess of the monies appropriated and on hand for the erection of said building; that thereupon said plans and specifications were scaled down and materially altered; that without readvertising for bids, the appellants entered into written contracts with those who had been the low bidders, which contracts provided for the construction of said school building as altered and changed for a total amount within the available appropriation; that each of the contractors agreed, for a certain sum, to furnish and install all the portion of his part of the construction which had been deleted as herein described, when a tax levy was made to pay for sume, and appellee agreed that he would cause such 'tax levies to be made'; that the total amount of the officers for the completion of the deleted portion of said building by the contractors was $23,000 for which there has never been an appropriation; that the obligations of this contract caused the debt of the township to be in excess of two per cent of the assessed valuation of the property thereof.

After this action was started, and before the amended complaint herein was filed, the Indiana General Assembly enacted a law to validate the aforesaid contracts, which is Chapter 192 of the Acts of 1947, which, omitting the recitals therein and the emergency clause, reads as follows:

'Section 1. All acts of the trustee and the advisory board of Aubbeenaubbee township, Fulton County, authorizing the modification of said specifications and plans, accepting the bids as revised and letting contracts pursuant to said modifications and revisions as well as construction work done pursuant to such contracts are all hereby legalized and rendered valid and said contracts shall remain and continue in full force and effect.'

The appellants aver in this complaint that this statute is in violation of certain provisions of our Constitution as hereinafter set out.

At the outset, we desire to state that this complaint fails to allege any agreement between the appellee and the contractors to complete those portions of the building not included in the original contract. Certainly appellee could not cause a tax levy to be made to pay for such completion. All that is alleged is that the contractors made offers of completion which were never accepted.

There is no dispute in the evidence in this case. It substantiates all the allegations of the complaint, except there is no evidence that the contracts as awarded exceeded the debt limit of the township, nor was there any evidence that any contracts were executed to complete those portions of the building not included in the original contracts.

Among others, the appellants have assigned as errors the overruling of their demurrers to the appellee's second and third paragraphs of answer. Appellants could not have been harmed by these rulings, as none of the facts relied upon as defenses in said answers were found to be true in the special finding of facts. Appellants admit in their brief that they were not harmed by the court's rulings on these demurrers; for these reasons we will give these rulings no further consideration.

We will now consider the grounds for reversal relied upon by the appellants.

Appellants contend that the material alteration of the plans and specifications, followed by the award of contracts for the construction of the schoolhouse without readvertising for bids, was not in compliance with § 65-319, Burns' Stat. 1943 Replacement, and therefore, void as provided by § 65-321, Burns' Stat., 1943 Replacement. With this contention we agree. Moss v. Sugar Ridge Tp., 1903, 161 Ind. 417, 68 N.E. 896; Oppenheimer v. Greencastle School Tp., 1905, 164 Ind. 99, 72 N.E. 1100; Peck-Williamson Heating & Ventilating Co. v. Steen School Tp., 1903, 30 Ind.App. 637, 66 N.E. 909.

It is our opinion however, that even though a public contract may be void due to the fact that all the legal formalities in its awarding have not been complied with, yet, such contract may, under certain circumstances, be made valid by curative legislation. An eminent authority has stated these circumstances as follows: 'The rule applicable to cases of this description is substantially the following: If the thing wanting or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by a subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.' Cooley's, Constitutional Limitation, 775, 776 (8th Ed. 1927). This quotation, in substantially the same form from an earlier edition of this work, was approved in Sithin v. The Board of Commissioners of Shelby County, 1879, 66 Ind. 109.

Had this statute required notice to the citizens of the township before any contract could be let, a different question would be presented. This court in Strosser v. The City of Fort Wayne, 1884, 100 Ind. 443, not only held that notice of some kind is necessary where the question of due process as guaranteed by the Constitution is involved, but, also that a curative statute cannot dispense with notice to the citizens where the matter to be cured was had under a statute which required such notice in order to acquire jurisdiction. Furthermore, had there been a lack of power on the part of the appellee to contract for the construction of a schoolhouse this curative statute would not have been valid. Seitz v. Mosier, 1922, 192 Ind. 416, 136 N.E. 840.

The defect attempted to be cured by the statute before us, was the failure to give notice to bidders, as required by said § 65-319, Burns' Stat., 1943 Replacement. This statute does not require any notice to the citizens of the township. Under any view of the law, the appellee, at the time the contracts were executed, had jurisdiction of the subject matter. Notice to bidders for said construction might lawfully have been dispensed with in the original statute; such advertisement is not to give notice to property holders. Ross v. Stackhouse, 1887, 114 Ind. 200, 16 N.E. 501. What happened here falls within the rule that an act defectively or irregularly executed by a public officer or in a legal proceedings may be validated by a subsequent statute. See Johnson v. Board of Commissioners of Wells County et al., 1886, 107 Ind. 15, 8 N.E. 1; Kelly, Treasurer v. State ex rel. First National Bank of Frankfort, 1883, 92 Ind. 236; Board of Com'rs of Wabash County v. Workman, 1917, 186 Ind. 280, 116 N.E. 83. The case last cited held that a contract made without an appropriation by a county, as required by law, although void, may be cured by a subsequent statute. It is true it is said in Zorn v. Warren-Scharf, Asphalt, Paving Co., 1908, 42 Ind.App. 213, 84 N.E. 509, wherein a street improvement was held void, that the failure to give notice to bidders in a public improvment as required by statute, is the failure to take a jurisdictional step. But this case did not have to do with the question of whether this failure could be corrected by curative legislation. This court, in Johnson v. Board of Commissioners of Wells County et al., supra, 107 Ind. at page 28 of the Indiana Reports, 8 N.E. at page 7, has quoted with approval from ...