The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-02-08
Attorney-General Hord's Opinion.


which he had not furnished
Attorney-General HOrd's Opinion.
Following Mr.. Howard's examination, the COM
mittee held a secret session for receiving and
considering the opinion of Encouragement
Hord in reply TO questions which had been
asked upon matters relating to the investiga-
ton and the State-house contract. The letter of
the Attorney-general was as follows:
1. "Can the Board Of State-house Commission
ers remove the present contractors for any
eanses And If so, and such board do so remove,
ana annul the contract made with, Messrs. KAN
macher d Denig, will the State become liable
Tor any damages to said cOntractorsp
In answer to your first question, 1 respect
fully submit that the Board of State-house Com
missoners possesses the power of interfering
under certain contingencies only, which are
specifically prescribed, as follows: First,
the contract provides that If in the
opinion of the Board of State-house Commits
sioners Kanmaeher & Denig shall fail to prose-
cute the WORK OF constructing said building as
fast as the board shall require, then the board
may, If they so choose, contract for materi4and
hire laborers and mechanics and proceed with
the work. as they may determine. All the cost
OF such materials and expenses of such laborers
ana mechanics, or Other necessary expenses III
CURED In prosecuting the work, shall be charged
to kanmacher & Deulg, the contractors, and all
SUCH expenditures shall be treated as payment
to said contractors, the same as il they had
furnished such work and materials
and other expenditures in constructing said
building in accordance with the terms OF agree
Oond for any excess of expenditures so made by
SAID board i'll excess of the contract price for
all work so done and materials furnished"
THE COMMISSIONERS MAY REMOVE THE CON-
TRACTORS.
Q, The contract further provides 'that the
board reserves the right at any time, when, the
opinion of said board, Kanmacher e. Denig shall
fail to prosecute the construction of said build
ing as fast said board shall require, to de-
nh IN
the part of said Kanmacher & Denic,
after notice in writing, served upon
them at least thirty days previously,
ana may ralet the construction of
SAID building to otner party or parties, aud
hold them responsible upon their bond for all
losses, damages and expenses, direct and indi-
rect, caused or occasiOned by said abandonment
OF said contract by them, as well as any and all
increase in the cost of constructing said build
ing caused by said reletting to other party or
parties"
thorlzlng ana providing for the erection of new
State-house that call contracts with the build
ers' arehltec,s or material men shall reserve
the right OF the board Tor good cause shown, and
OF the Legislature, by concurrent vote of
both houses, to annul the contract,
and the board shall make no allowance for dam
ages, only for expenses incurred and for labor
performed. Acts special session 1S70-75.
1t is provided in the contract between the
board and Kanmacher & Deng, "that the right
is reserved to said board, in the event of the
death of said Kanmaoher DenIg, for any
current vote of both houses, to annul the CON
tract at any time, and said board shall make no
allowance TO Kanmacher g. Denig, or their repre-
sentatlves, for damages because of such annul-
ling of the contract, it being agreed
however. that said Kanmacher & Denig shall
be allowed just and reasonable price for all
materials furnished and labor performed in the
construction OF said building at the time of such
annnlllng OF contract not estimated or paid
for"
The board by virtue of tine statute and the
contract, would be authorized to aunu the con-
tract 'for any good cause shown" or the Legis-
lature may, at any time, annul the contract by
concurrent vote of both houses. If the con
tract shall be- annulled by the board for
Kanmacher q Dsnig would be en-,
titled to just and reasonable price for all ma
terials furnished and labor performed in the con
structlon of the building not estimated and paid
for at the time of the notification of the CON
tract, and the 10 per cent. reserved from pay
ments or estimates, and nothing more
Your second inquiry Is as follows; second.
can said contractors abandon their contract, IL
they choosei and If they do, what remedy has
the State against them, and TO what amOuntT
There is nothing in the terms of the contract
comforting on Kanmacher & Denig the right of its
abandonment. II they elect to and do aban-
don il, and refuse to perform and execute it's
stpuati0ns, they become liable to tine State for
the difference between the contract price and
what 1t may cost the State to complete the build
ing according TO contract, as damages. The sure
ties, however, become liable to the State for
900. the penal Limitation of the bond.
LIABILITY OF THE CONTRACTORS sURErIEs.
Third question-''Under the contract as made
between the Board of State-house Commissioners
and Kanmacher & Denig, are the sure
ties on the contractors bond released
from liability because OF the supple
mental contracts made by the board and the
contractor, where tine sureties did not give their
written consent therefor"
III ans to the foregoing, there is nothing
apparent from the surface or in view, from an
investigation of the papers, that would release
Denig because of the supplemental contracts
made between the board of State-nOuss Commits
sioners and Ksninaoher & Denig. The speci-
fcations, which, by reference rendered "a
part Of the contract, include this stipulation.
"rhe board of State-hOuse commissioners
NAV direct their architect to order any
alterations in the form OF the structure or kind
of ma teriais, or the furnishing thereof, without
violating the contract, and the difference in ex-
pense of such change shall he mutually agreed
upon before The change is made between the
contractors and the architect. and the amount
of additional cost or diminished cost over or
under the contract price OF tho original WORK
snail be added to or deducted from the original
cost of the work. In case the contractors and
the architect shall disagree as to the cost
of the proposed changes, each party
shall submit in writing to the board of
commissioners their estimates of such
and such decision shall be final and conclusive
on all parties"
The supplemental contracts to which your in
curry is addressed embrace such changes in the
form of the structure, material and flush per
mtted ny the preceding clause taken from the
original contract. The bond OF the sureties was
given to secure the performance of this contract,
and capnot conceive that IL was necessary to
fur her secure the written consent of the sure
ties to such changes ana alterations authorized
as aforesaid. and the execution of said contracts
did not release the snrities.
Fourth question-"Are the Estate house com
missioners allowed, under the provisions of the
act for the erection of the Stae-hOuse, to charge
the State for their board while in attendance
upon their duties. or is all they entitled to
the per diem allowance OF So per day and actual
travelling expenses2"
REMUNERATION OF THE COMMISSIONERS.
The state-house Commissioners are each en-
titled to So per day while In the actual and nee
essary performance of their official duties, and
such of the commissioners as are non-resdents
of Marion county are entitled to the reasona BILE