Million v. Metropolitan, Etc., Co. , 95 Ind. App. 628 ( 1930 )

DISSENTING OPINION. Dissents. I do not agree with the majority opinion in this case and therefore I must dissent. It is not accurate to say that the contract was let and the bond given under § 8285 Burns 1926, but rather as such section was supplemented by §§ 6121 and 6122, Burns 1926, which sections were not in conflict with appellant's rights as defined in § 8285, but supplemental thereto. Section 6122, supra, expressly provided for the bond in suit and which is under consideration, and its terms and conditions, and hence it is a statutory bond made and executed pursuant to the statutory requirement. The act itself pertains to a new right created by statute, that of the construction of public works such as here upon certain statutory terms and conditions. The rule is thus stated on page 917, Vol. 2, Lewis' Southerland Statutory Construction: "Since the statute creates and regulates, there is no ground for claiming or proceeding except according to it. In other words, where a statute creates a new right and prescribes a particular remedy, such remedy must be strictly pursued and the party is confined to that remedy." Numerous authorities are cited to sustain the rule. I am wholly unable to understand how the writer of the majority opinion, whether he considers the 8285 section or the 1925 act, can find any comfort in Lang v. Scott (1825), 1 Blackf. 405. There was no provision in the common law, such as created here by statute, for the construction of public works. The provisions in the statute here involved, pertain to a new right — that of the construction, etc., of any public work, with an adequate remedy for its violation, and the Lang case expressly holds that: "If a statute is introductory of new rights which did not before exist in the country, and prescribes a penalty for their violation, the persons claiming under the act must depend, for the security of the rights thus claimed, upon the provisions therein specified."

In Butler v. State (1855), 6 Ind. 165, 168, the court, approving Lang v. Scott, supra, thus states the rule: "When a new right is introduced, and the remedy for its violation is prescribed by statute, the party complaining of such violation is confined to the statutory remedy."

In Zellers v. State (1856), 7 Ind. 659, the court says: "The rule is settled that where the statute makes that unlawful which was lawful before, and appoints a specific remedy, that remedy must be pursued and no other."

In The City of Greencastle v. Allen (1873), 43 Ind. 347, it was held that where a city, organized and acting under the general law, makes a contract for the improvement of a street at the expense of the property owners, and the contractor does the work in whole or in part and the engineer refuses to make an estimate, and the council refuses to issue precepts on the proper application against the property owners, a suit cannot be maintained by the contractor against the city for damages, which would be a common-law remedy, but that in such case the proper remedy is the statutory one of mandate to compel the engineer and council to perform their duties.

In Storms v. Stevens (1885), 104 Ind. 46, 37 N.E. 401, a ditch was constructed by the county commissioners under §§ 4285 et seq., R.S. 1881; appellant bought the share allotted to appellee and received a certificate therefor as provided, and he thereafter brought suit in the court to enforce against appellee's land the lien created. The statutory mode of collecting was by placing the amount upon the tax duplicate to be collected as other taxes are collected. The court held that if the statute provides a mode of collection, that is exclusive and must be pursued. The court, following Lang v. Scott, supra, stated that the statute created a new right and that where such new right is so created and a mode of enforcing it provided, that mode must be pursued to the exclusion of all other remedies.

In Boys v. Simmons (1880), 72 Ind. 593, the court said that: "Appellant's suit was purely a statutory proceeding, as without the statute he could surely not maintain such suit. In such a case the appellant must state such facts in his complaint as would clearly entitle him to the statutory remedy, . . . for, in a suit authorized by and brought under the provisions of a statute which gives a certain and specific remedy in a given case, the facts stated in the complaint must be sufficient to bring the case within the purview of the statute, and to entitle the complaining party to the remedy or relief therein provided."

The case of Board, etc., v. Adler (1922), 77 Ind. App. 296, 133 N.E. 602, 603, involved the recovery by suit, of taxes which had been illegally collected and the court stated that: "The rule is that, where the legislature creates a right and prescribes a remedy or method whereby the right may be enforced, the statutory remedy is exclusive."

In Victory v. Fitzpatrick (1856), 8 Ind. 281, the action was for damages for trespass on appellant's land, which was a common-law remedy and the court held that the action could not be sustained for the reason that the statute provided a mode of redress and it must be followed.

In harmony with the case of Victory v. Fitzpatrick, supra, in McCormack v. Terre Haute, etc., R. Co. (1857), 9 Ind. 283, the court held that: "Where the statute authorizes property to be taken, and points out a specific mode by which, and a particular Court in which, redress shall be sought, the statutory remedy must be pursued."

In Martin v. West (1856), 7 Ind. 659, the court held that: "By the above section 10, a new right of action is introduced, one that did not exist at common law. The statute points out the rule of proceeding, namely, by suit on the bond. It follows that the plaintiff having failed to adopt the remedy thus prescribed, is not entitled to recover."

In Couchman v. Prather (1904), 162 Ind. 250, 70 N.E. 240, 241, the court said that: "So far as a remedy by way of damages is concerned, the rule is that when a new right is conferred by statute, and an adequate provision for its enforcement is therein made, the statutory remedy is exclusive."

In Boyd, Admr., v. Brazil Block Coal Co. (1900),25 Ind. App. 157, 57 N.E. 732, 734, the action was to recover damages for the benefit of the children of John W. Elliott, deceased, who died from personal injuries sustained in a coal mine, the court holding that the action could not be maintained by the administrator, but that under the statute it must be maintained by the widow, stated the rule to be that: "When a new right or proceeding is created by statute, and a mode prescribed for enforcing it, that mode must be pursued, to the exclusion of all others."

In Brown v. Kemp (1919), 71 Ind. App. 281, 124 N.E. 777, 778, which was an action by the widow as administratrix of the estate of Nathaniel Kemp for damages for the death of her husband, resulting from injuries suffered when intoxicated from liquors unlawfully sold to him, this court, speaking by McMahan, J., stated that: "Nothing is better settled than that when the Legislature specifically prescribes an adequate legal remedy, that alone is open to the litigant."

It seems to me that from these authorities it is well established in this state that where a right or proceeding is established by statute and the statute so creating it provides a legal remedy for its enforcement, such remedy is exclusive of all other remedies. To the same effect, I cite: James v. AtlanticDelaine Co. (1875), Fed. Cas. No. 7179; People v. Craycroft (1852), 2 Cal. 243, 56 Am. Dec. 331; Andover, etc., Corp. v.Gould (1809), 6 Mass. 40, 4 Am. Dec. 80; Chesley v. Smith (1817), 1 N.H. 20; Moies v. Sprague (1870), 9 R.I. 541;Richardson v. Peoples, etc., Co. (1906), 28 Ky. Law Rep. 919, 92 S.W. 284, 285; Haines v. Fearnley (1911), 51 Col. 317, 117 P. 162; State, ex rel., v. Mississippi,etc., Co. (1908), 209 Mo. 472, 108 S.W. 97; Lewisburg BridgeCo. v. Union and Northumberland Counties (1911), 232 Pa. 255, 81 A. 324; Clancy v. Board, etc. (1912), 150 Wis. 630, 138 N.W. 109; Schmidt v. City of Milwaukee (1912), 149 Wis. 367, 135 N.W. 883; Singer, etc., Co. v. Teasley (1917), 198 Ala. 673, 73 So. 969; Nash v. Inhabitants of Sorrento (1919),118 Me. 224, 107 A. 32; Osgood v. Names (1921), 191 Ia. 1227, 184 N.W. 331; Cook v. Lehigh Valley R. Co. (1920), 181 N.Y.S. 217; Bailey v. Colleen Products Co. (1923), 120 Misc. Rep. 297, 198 N.Y.S. 418; Van Buskirk v. Red Buttes, etc., Co. (1916), 24 Wyo. 183, 156 P. 1122, 160 P. 387.

If, as the majority opinion contends, appellants may enforce a common-law liability as they have attempted to do in this case, still they cannot prevail in this action. That the bond in suit is a statutory bond, given to meet the requirements of the statute in a statutory proceeding, is beyond contention. Such being the case, the provisions of the statute requiring the bond, enter into and become a part of it, whether written into it or not, and constitute the contract upon which both the rights and the liabilities are to be determined. United States, etc., R.Co. v. Poetker (1913), 180 Ind. 255, 102 N.E. 372, L.R.A. 1917B, 984. It follows that the bond sued upon is the same as if it had contained the provisions as to the duties required of appellants as to the method and time of filing their claim, and as to the provision that unless the action is commenced within one year after the filing of their verified duplicate statement, which must be filed within sixty days after the last item of material shall have been furnished, as appears in Sec. 2 of the act involved, being § 6122 Burns 1926, it shall be barred. The provisions are in the bond and a part of it just as much as if they had been written therein, and if appellants would avail themselves of the provisions of the bond including the time within which suit must be brought, they can only do so by complying with its conditions, which includes, of course, the condition as to the time of bringing the action as provided by statute. The condition as to the time within which suit must be brought is a limitation, not upon the right of action, but the time within which the right might be exercised and this is true whether the liability which appellants would enforce is a common-law liability or a statutory liability. Nothing is better settled than that if one seeks to avail himself of the provisions of a bond, he must do so on the conditions named in it. Knight Jillson Co. v. Castle (1909), 172 Ind. 97, 87 N.E. 976, 27 L.R.A. (N.S.) 573.

This question has been considered and decided in ZeidlerConcrete Pipe Co. v. Ryan (1928), 205 Iowa 37, 251 N.W. 801, 802. In that case, the controlling question concerned the failure of the subcontractor to file a verified itemized statement of its claim against the principal contractor with the city clerk within four months after the last item of material was furnished for a certain public work as provided by the statute, and the neglect of the claimant to bring an action on the bond of the principal contractor succeeding the completion of the public improvement as required by the statute. The bond there involved provided that no action should be brought on said bond after six months after the completion of any public improvement or building, and further provided that a verified itemized statement of the claim should be filed with the city clerk, county auditor or secretary of the school board, as the case might be, within four months after the last item of material was furnished or labor performed. It was there held that the case was barred as against the surety company for two reasons: That the action was not brought within the time required, and that the verified itemized statement was not filed until long after the four-month limitation within which it was required to be filed. The court said: "There is no escape from the mandates contained in the act, and those limitations and essentials become a part of the bond, and are conditions prerequisite to a recovery thereon." The court further held, against the appellant's contention, that a common-law liability could not be maintained against a surety on a statutory bond, saying that public policy was involved.

This seems apparent to me, for, if as appellants contend, they can ignore the plain provisions of the statute as to the limitation of time within which suit may be brought on the bond, thereby extending the time within which suit may be brought, to ten years as provided in the general statute of limitations, the principal contractor within such time may die, or become insolvent and the property which would otherwise be available to protect the surety might be dissipated. Certainly those who might be requested to become sureties under such conditions would hesitate to do so. Further, if sureties, under terms of the statutes, have notice, by filing of the claims as required therein, that the principal has failed to pay for materials furnished or labor performed, by timely action they might be able to protect themselves, while without such notice, their remedy might be lost.

The proceeding to build a highway, here involved, and this action growing out of it, were both subsequent to the enactment of Chap. 44 of the Acts of 1925, being the act here involved, in which act there is clearly a specific legal remedy given, for the enforcement of a statutory right, and such being the case, that remedy alone is open to the litigant.

There is a marked difference between Secs. 1 and 2 of the 1925 act and the sections which they amend, being Secs. 1 and 2 of Chap. 173 of the Acts of 1911, and this difference clearly distinguishes from this case, the cases ofEquitable Surety Co. v. Indiana Fuel Supply Co. (1919),70 Ind. App. 75, 123 N.E. 22, and Illinois Surety Co. v. State,ex rel. (1919), 69 Ind. App. 450, 122 N.E. 30, both of which cases were decided in 1919, which was, of course, subsequent to the 1911 act and prior to the 1925 act mentioned above, and in the majority opinion.

In the Illinois Surety Co. case, the court stated that by virtue of the 1911 act and the contract, the relator might have secured its claim by filing it with the board of commissioners as provided in the act, but that such procedure was not exclusive, and that there was nothing in the statute, nor in the contract, for the performance of which the bond was given, that made it obligatory upon the relator to file its claim with the board of commissioners, such procedure being a mere privilege of which the relator might avail itself at its option. But § 2 of the Acts of 1911 provided that the contract and bond to be given by the contractor should be conditioned that the sureties thereon should be liable for labor, and for material to subcontractors. The whole act pertained only to a method of impounding the fund, and was supplementary to, and not in conflict with, other laws for the protection of labor, and the bond with its statutory conditions was a statutory bond and not a common-law bond. Clearly, under this statute, the relator might have pursued the remedy of filing its claim with the board of commissioners as provided in the statute, or if it did not choose to adopt that remedy, it, regardless of the statute, and without limitation so far as required by that statute, had its right of action on the bond, and if such bond did not have written therein the provisions of the statute above referred to, the law read them into it just as much as if they had been written therein, and the litigants were bound thereby. There was only one bond on which the relator could have brought that action and that was the one provided by statute. And in the Equitable Surety Company case, if the appellee chose to pursue the remedy of filing its claim with the board of commissioners and of relying upon the payment thereof through that channel, it had the right and privilege so to do, but there was nothing in the statute that required appellee, in the event that it chose to adopt the remedy of a suit on the bond, to file its claim within thirty days after the passage of the act or within sixty days after the completion of the work. That provision in Sec. 2 clearly is a requirement for the impounding of the fund. Without taking that step it had its right of action upon the bond for which the statute provided, which was, of course, a statutory bond, subject not only to the terms and stipulations therein, but as well, to the provisions of the statute which must be read into it.

Another case equally as forceful as the Zeidler Concrete PipeCompany v. Ryan case, supra, is that of Republic, etc.,Co. v. Patillo (1912), 19 Cal.App. 316, 125 P. 923. If its reasoning and decision are followed in this case, there can be no recovery. Because of the length of this dissenting opinion, I shall not discuss it further than to state that the court held that the bond there involved, having been given as a statutory bond, could not be considered as a common-law obligation, citing authorities to sustain its holding.

The majority opinion as to special acts and general acts can have no application to this case. Even if it be conceded that the general highway act is a special act, and I do not so concede, it is clear that Chap. 44 here under consideration, was intended to apply to all contracts for the construction of public works. If it has no application to the circumstances of this case, I can think of no situation where it would have application, and it would seem that the legislature accomplished nothing, so far as actions on contractors' bonds and the limitation of time within which actions might be commenced thereon are concerned.

I am fully convinced that a common-law remedy is not available to appellants in the case, and that appellants, having brought their actions upon the bond provided by statute, they can only recover when they have complied with the terms of such statutory bond together with the provisions of the statute which by law are read into it, and that the judgment should be affirmed.