APPEAL from the Circuit Court of Vermilion County; the Hon.
CARL A. LUND, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 8, 1981.
This appeal presents questions of statutory construction relating to portions of "An Act in relation to bonds of contractors entering into contracts for public construction" (Ill. Rev. Stat. 1979, ch. 29, pars. 15, 16) (Bond Act), and to portions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 1-101 et seq.) (Immunity Act).
Defendants City of Hoopeston and Village of Rossville entered into contracts for public improvements with Tom's Equipment Company. Plaintiff was a subcontractor of Tom's Equipment and furnished materials for the jobs. It was alleged that defendant Kenneth Collins was comptroller of the City of Hoopeston and had general control over all municipal officers. A similar allegation concerning defendant Joyce Redden was that she was the village clerk of Rossville and had general control over the other municipal officers.
Further allegations in plaintiff's complaint were that Tom's Equipment had failed to pay plaintiff for the materials furnished by it, even though that claim had been reduced to judgment in another proceeding; that the defendants had failed, or neglected, to obtain the contractor's bond required by section 1 of the Bond Act (Ill. Rev. Stat. 1979, ch. 29, par. 15); that plaintiff had served proper notice as required by section 2 of the Bond Act (Ill. Rev. Stat. 1979, ch. 29, par. 16) but that all funds had been paid out prior to that time; and that plaintiff had been damaged to the extent of its unpaid claim.
It can thus be seen that plaintiff's complaint sounds in ordinary negligence, and so far as we can determine, presents a question of first impression under the Bond Act.
The circuit court of Vermilion County, after briefing and argument by the parties, entered separate orders of dismissal as to all defendants. The court indicated that it was basing its order on the wording of the Bond Act itself and the analogy found in Gunther v. O'Brien Brothers Construction Co. (1938), 369 Ill. 362, 16 N.E.2d 890.
• 1 Since the bases of our decision depend on different statutes and different theories, we will discuss the claim versus the municipalities and the claim versus their respective officers separately; first, as to the municipalities. Section 1 of the Bond Act provides:
"All officials, boards, commissions or agents of this State, or of any political subdivision thereof in making contracts for public work of any kind to be performed for the State, or a political subdivision thereof shall require every contractor for such work to furnish, supply and deliver a bond to the State, or to the political subdivision thereof entering into such contract, as the case may be, with good and sufficient sureties. The amount of such bond shall be fixed by such officials, boards, commissions, commissioners or agents, and such bond, among other conditions, shall be conditioned for the completion of the contract, for the payment of material used in such work and for all labor performed in such work, whether by subcontractor or otherwise." Ill. Rev. Stat. 1979, ch. 29, par. 15.
Section 2 of the Bond Act provides:
"Every person furnishing material or performing labor, either as an individual or as a sub-contractor for any contractor, with the State, or a political subdivision thereof where bond shall be executed as provided in this Act, shall have the right to sue on such bond in the name of the State, or the political subdivision thereof entering into such contract, as the case may be, for his use and benefit, and in such suit the plaintiff shall file a copy of such bond, certified by the party or parties in whose charge such bond shall be, which copy shall, unless execution thereof be denied under oath, be prima facie evidence of the execution and delivery of the original; provided, however, that this Act shall not be taken to in any way make the State, or the political subdivision thereof entering into such contract, as the case may be, liable to such sub-contractor, materialman or laborer to any greater extent than it was liable under the law as it stood before the adoption of this Act." Ill. Rev. Stat. 1979, ch. 29, par. 16.
The critical language is the proviso in section 2: "* * * provided, however, that this Act shall not be taken to in any way make the State, or the political subdivision thereof entering into such contract, as the case may be, liable to such subcontractor, materialman or laborer to any greater extent than it was liable under the law as it stood before the adoption of this Act." The Act was adopted in 1931.
Plaintiff places a narrow construction on the proviso, arguing that it relates only to the language immediately preceding it, which deals with the right of the contractor to bring a suit in the name of the municipality, that it limits recovery to the extent of the bond and thus becomes operative only when there is a bond. ...