
    Finn et al. v. State of Indiana, ex rel. McDaniel.
    [No. 9,102.
    Filed November 9, 1916.
    Rehearing denied May 31, 1917. Transfer denied January 16, 1918.]
    Municipal Corporation. — Member of Common Council. — Interest in Contracts with City.- — Statute.—Scope.—Section 8648 Burns 1914, Acts 1907 p. 538, providing that no member of the common council of any city or incorporated town shall, either directly or indirectly, be a party to or in any manner interested in any contract or ' agreement with such city for'any matter by which any indebtedness is created or approved by the council, and that such contract shall be absolutely void, does not apply to contracts between a general contractor and a materialman, hence the fact that a materialman was a member of a common council of a city when bids were accepted for a public improvement did not defeat his recovery for materials furnished in a suit on a bond given to secure the performance of the contract, the bond in terms inuring to the benefit of materialmen.
    From Monroe Circuit Court; Robert L. Miller, Special Judge.
    Action by tbe State of Indiana, on the relation of Lucian C. McDaniel against William J. Finn and the Federal Union Surety Company. From a judgment for relator, the defendants appeal.
    
      Affirmed.
    
    
      Henley <£ Baker, Henley, Fenton & Joseph and Rufus H. East, for appellants.
    
      Joseph E. Henley and George Henley, for appellee.
   Ibach, J.

— This is an action on a bond brought by the relator against appellants to recover for materials furnished appellant Finn, general contractor, in the improvement of a certain street in the city of Bloomington, Indiana.

The defense set up in appellant Federal Union Surety Company’s third and fourth paragraphs of answer is based on an act of 1907, Acts 1907 p. 538, §8648 Burns 1914, which is in part as follows: “No member of thé common council * * * of any city or incorporated town of this state, shall, either directly or indirectly, be a party to or in any manner interested in any contract or agreement, either with such city or incorporated town, or with any officer, board, clerk, deputy or employe of such city or incorporated town, for any matter, cause or thing by which any liability or indebtedness is in any way or manner created or passed upon, authorized or approved by such council * ■ * * or by any member thereof. * * - * Any contract in contravention of the foregoing provisions shall be absolutely void. ’ ’

As above indicated, this is not a suit on the principal contract, nor a suit to recover from the city, but is a suit on the bond given to secure the performance of such contract, which bond by its provisions also inured to the benefit of' materialmen. Each of said paragraphs of answer shows, and for the purposes of demurrer must be admitted, that the relator was a member of the common council of said city at the time the resolution was passed and bids accepted for the improvement, and was still a member at the time the improvement was finally approved; that this action is to recover the balance due on material furnished by the relator to the general contractor and used in the performance of the principal contract.

The appellant surety company contends that such facts bring the relator clearly within the provisions of said statute, and by reason thereof he should not recover. On the other hand, appellee contends that the statute does not apply to the facts of this case.

These contentions present the controlling question involved in the appeal: Did the legislature in enacting such statute intend it to include contracts between the general contractor and materialmen? It appears to be limited to “any contract or agreement, either with such city or incorporated town, or •with any officer, board, clerk, deputy or employe of ■ such city or incorporated town, for any matter,' cause or thing by which any liability or indebtedness is in any way or manner created or passed upon.” By the language used the legislature has eliminated city officials not parties to, connected with, or interested in the original contract made with the city by other parties, but who simply furnished materials in the regular way to such general contractor, and no rule of construction would permit its being read into the statute. Cleveland, etc., R. Co. v. Henry (1907), 170 Ind. 94, 104, 83 N. E. 710; Indianapolis, etc., Traction Co. v. Bremen (1909), 174 Ind. 1, 87 N. E. 215, 90 N. E. 65, 68, 91 N. E. 503, 30 L. R. A. (N. S.) 85. It follows that appellant has not shown facts to bring it within the protection of the statute, and for this reason the court did not err in sustaining the demurrer to the third and fourth paragraphs of answer.

As to whether the contract in question was against public policy, we express no opinion, the question presented being limited by appellant’s brief to the statute.

The cases cited bya appellant and by appellees, either by reason of the particular statutes under which they were decided or because not involved in the question here presented, are not cited or reviewed.

No available error being shown, the judgment is affirmed.

Note. — Reported in 114 N. E. 9. See 28 Oyc 650.  