Racer v. Wingate

Coffey, J. On the 4th day of June, 1891, Charles A. Rhine, as drainage commissioner, charged with the construction of a public ditch described in the record in this case, filed a report in the Blackford Circuit Court. So much of the report as is necessary to the controversy here, is as follows: “Comes now Charles A. Rhine, drainage commissioner, charged with the construction of said drain, and shows and reports to the court that Henry C. Paul, to. whom the contract for the construction of said ditch was awarded, has fully and completely constructed said ditch according to the contract for the construction thereof heretofore entered into between said Paul and a former drainage commissioner charged with the construction of said ditch, and according to the plans and specifications heretofore adopted and approved by this court.” To this report the appellants, who are assessed to pay for the construction of the ditch, filed exceptions upon which issues were formed. The cause was tried by the court, resulting in a special finding of the facts upon which the court stated conclusions of law, and rendered judgment for the appellees, approving and confirming the report above set forth. The assignment of error calls in question the correctness of the conclusions stated by the trial court upon the facts found. The sole question involved in the case is the question as to whether there should be an adjudication on the facts found by the trial court to the effect that the ditch described in the finding has been completed according to the plans and specifications. The question of the sum to be paid to the contractor is not — 116 — involved except incidentally. He is not a party to this suit. He receives his pay from the commissioner of drainage. As the report of the commissioner in this case contains the statement that the ditch has been completed according to the plans and specifications, it is not doubted that its approval by the court would constitute such an adjudication of that fact as would preclude every one from disputing it, so that the contractor would become entitled to receive the full contract price for the work whether he has, in fact, complied with his contract, or has violated it. <. In this incidental way, and in no other, is the amount to be paid to the contractor involved. It is not claimed by either party to this suit, that the ditch in controversy has been completed according to the plans and specifications adopted by the court for its construction. It has been solemnly declared by this court time and again that those who pay the assessments have the right to insist upon the construction of the work as it has been established by' the report of the commissioners, and by the judgment of the court. It has, furthermore, been held that it is not to be presumed that the court would approve the final report of the commissioner and strike the cause from the docket until satisfied that the work had been completed according to its order. Indianapolis, etc., Gravel Road Co. v. State, ex rel., 105 Ind. 37; Fries v. Brier, 111 Ind. 65; Smith v. State, ex rel., 117 Ind. 167. The finding of the court “that such open ditch, as constructed, has been completed by the contractor,” does not show that the work has been done according to the plans and specifications, or according to the order of the court, and is not, therefore, sufficient to authorize a conclusion of law that the commissioner is entitled' to a judgment approving his report. — 117 — The court carefully omits to find that the work has been done according to its judgment or order, or according to the plans and specifications. Indeed it could not make such a finding in view of the preceding facts found. The facts found make it plain that there was almost a total disregard of the order directing the work. The plans and specifications, as well as the order of the court, required the ditch to be constructed with banks sloping one foot to each foot in depth. They also required that the dirt removed from the ditch should be placed at least two feet from each bank, and given a slope of one foot to each foot in depth. The finding shows that neither of these requirements has been complied with by the contractor. The banks were cut perpendicular, and while the dirt removed from the ditch was placed the required distance from the banks it was not given the required slope. The purpose of these requirements is easily and well understood, and involves matters of which we take judicial notice. It is well settled that the courts take notice of matters of common notoriety, as well as of the ordinary laws of nature. Am. and Eng. Ency. of Law, vol. 12, p. 195. It is a well known fact that a current of water striking a perpendicular bank will ordinarily create a concave, thus causing the bank to fall. In the case of a ditch, we must take notice, we think, that the falling in of the banks would tend to fill it and obstruct the flow of the water, and thus lessen its usefulness. The purpose, therefore, of requiring the banks of this ditch to be given a slope of one foot to each foot in depth was to prevent the cutting and falling in of the banks, which would otherwise occur. The purpose of requiring the dirt removed to be placed at least two feet from the banks of the ditch, and given the slope named in the plans and specifications, was to — 118 — prevent it from falling back into the ditch from which it was removed. With the perpendicular banks constantly-cutting and falling, by the action of the water, we have no assurance that the dirt deposited on the banks will not soon be reached, and that it will not fall into and obstruct the ditch. The plans and specifications were designed to prevent these results, and the order of the court required that they should be observed. There is no pretense that they have been complied with, and yet we are asked to solemnly adjudge that the work has been performed according to the plans and specifications. If we adjudge that the commissioner of drainage is, under these facts, entitled to have his report approved, which sets forth that the work has been completed according to the plans and specifications adopted by the court, we adjudge that a thing is true which appears upon the face of our judgment to be untrue. We cán not consistently say by our judgment that this ditch has been completed according to the plans and specifications when the contrary appears on the face-of our record. 'We do not think the appellants can complain simply because the ditch may be constructed with greater capacity than that contemplated by the plans and specifications, but they have just cause to complain, we think, if the banks of the ditch and the dirt excavated are not given the required slope, if thereby the value of the ditch to those who are required to pay for it is lessened. It is said, however, that it appears from the special finding of facts that the ditch constructed by the contractor is larger than the ditch called for by the plans and specifications, and as beneficial to those who are to be assessed to pay for it, as it would have been had the order of the court been followed, and therefore they can not be heard to complain. In answer to this position we would say (1) that there — 119 — is no finding of the court that the ditch, as constructed, is as beneficial to those assessed for its payment as it would have been had it conformed to the plans and specifications. Such a conclusion is a mere inference from the fact that it is wider than the one called for. We do not think such an inference follows, for the reasons above stated. (2) There was no issue involving such a question in the trial court. The simple issue for trial related to the question as to whether the work was done according to the plans and specifications under which the work was ordered, the appellants alleging that it was not so done, setting out many particulars in which there was a departure. Indeed, we are unable to conceive of how such an issue could be formed in this case. Had this been a suit by the contractor against the drainage commissioner to recover compensation for his work, such an issue, perhaps, might have been tendered and tried', but we do not think such an issue could be tendered where the only question for consideration was as to whether the work had been done according to., the order of the court. It is enough, however, to say that no such issue was tendered in this case, and yet we are asked to cut off the possibility of making such an issue between the proper parties by adjudging that the work has been done according to the plans and specifications. Again, it is said that the remedy of, the appellants, if the work was not being done according to the plans and specifications, was to háve the drainage commissioner and contractor cited for contempt for disobeying the order made by the court for the construction of the ditch, and as they did not avail themselves'of this remedy they should not be heard now. We are willing to concede this remedy to its fullest extent, but when and how is it to be exercised, and when — 120 — does the right to exercise it cease? Is it the law that those who are assessed for the construction of a public ditch must keep constant watch and ward over- the commissioner and contractor, and when it is discovered that there is a departure from the order of the court, hasten to the county seat, employ a lawyer, and cite them to show cause why they should not be fined for contempt? We think not. We think that those interested in the ditch have the right to assume, up to the hour work ceases, that it will be finished in substantial compliance with the order of the court, and that they may exercise • their right to cite the commissioner and contractor at-any time before they are cut off by the approval of the commissioner’s final report. But while we concede the remedy above mentioned, we are unwilling to hold that it is the only remedy. To so hold is to say that the appellants in this case have no right to be here. If the special finding' in this case, disclosed the fact that the ditch in question was constructed only one-half as wide, and that it contained - only one-half the depth called for by the order of the court establishing it, would any one doubt the right of the appellants to have it set aside on their exceptions? To hold that citation for contempt is the only remedy, is to hold that those who are interested in the ditch have no right to except to the final report of the commission. We think they have both remedies. Whether they have other remedies, we need not inquire. If it be said that it is now impossible to complete the construction of the ditch according to the plans and specifications and the order of the court, by reason of the great width at which it has been cut, and that a refusal to approve this report may result in a loss to the contractor, the question naturally arises: Who is at fault? Certainly not the appellants, for the finding of the court — 121 — ¡shows that they objected to and protested against the manner in which the work was being done, at every ■step, and that the commissioner and contractor both had •notice of such objections and protests. We do not think it can be successfully maintained that courts are organized to relieve parties from the consequences of the willful violation of their contracts. But we think no such ■question is before us. We are not permitted to look into the future and anticipate questions that may arise upon our enforcement of the law. When we have determined and applied the law in the case before us, our powers and duties are at an end, and we have no concern whatever as to what may be the consequences. We have carefully considered the case of Indianapolis, etc., Gravel Road Co. v. State, ex rel., supra, and Racer v. State, for Use, 131 Ind. 393, and have been unable to bring our minds to the belief that they control the ■questions involved in this case. Each of these cases was an action to recover assessments. ■ It was held, and we think properly, that it was no defense to such an action that the work was not completed according to the plans and specifications and the •order of the court, nor was it a defense to say that the commissioner and contractor were not prosecuting the work pursuant to the plans and specifications. The reason given in these cases for so holding is, that •under the statute providing for the construction of drains the commissioner has the right to collect the assessments before the drain is constructed and without regard to the condition of the work. Indeed, it is no uncommon thing to collect the whole assessment before the work is completed in order to be able to pay the contractor when he has complied with the terms of his contract. How the rule thus settled is to be made applicable to — 122 — the question involved in this case, we are unable to perceive. The collection of assessments to meet the expenses of constructing a public ditch is one thing, and determining the question as to whether it has been completed according to the order of the court is quite another and different thing. Filed Feb. 13, 1894; petition for a rehearing overruled May 10, 1894. , In what we have said we have not been unmindful of the importance of the question involved in this case. We do not believe that plans and specifications, and the orders of court based thereon, should receive such strict, construction as to deter bidders from undertaking the work at a price approximating its reasonable value. Where there is a substantial compliance with the order of the court the contractor should be paid the contract price. On the other hand, where there is not a substantial compliance with the plans and specifications, those who are to be assessed to pay for the drain should be protected, for the fault is not to be attributed to them. If it is to be understood that those who undertake to tax themselves for these improvements are to have no protection against the violation of the contract under which their work is done the people .will be deterred from undertaking such work. In our opinion, the judgment in this case should be reversed, with directions to the circuit court to restate its conclusions of law and to enter a judgment rejecting the commissioner’s report.