Agar v. Pagin

• Decision Date: 27 November 1906
• Docket Number: No. 6,052.,6,052.
• Citation: Agar v. Pagin, 39 Ind.App. 567, 79 N.E. 379 (Ind. App. 1906)
• Parties: AGAR v. PAGIN et al.
• Court: Indiana Appellate Court

39 Ind.App. 567

79 N.E. 379

AGAR

v.PAGIN et al.

No. 6,052.¹

Appellate Court of Indiana, Division No. 1.

Nov. 27, 1906.

Appeal from Circuit Court, Porter County; Willis C. McMahon, Judge.

Proceeding by Edgerton W. Agar against James R. Pagin and others to require defendants to appear before a committee of the common council of the city of Valparaiso and there testify and furnish evidence concerning their acts as members of the board of school trustees of the school city of Valparaiso. From an order denying such relief, petitioner appeals. Affirmed.

H. H. Loring, for appellant. N. L. Agnew and Wm. Johnston, for appellees.

MYERS, C. J.

On June 19, 1905, appellant, as clerk of the finance committee of the common council of the city of Valparaiso, Ind., made a duly verified report to the Porter circuit court, to the effect that the common council of said city, on June 9, 1905, had directed its finance committee to make an investigation into the expenditures of money received by the treasurer of the board of school trustees of the school city of Valparaiso since August, 1890; that he, as the duly elected clerk of said committee, and upon the committee's order, issued subpœnas signed by the members of said committee, and had the same duly served June 12, 1905, on appellees, treasurer and secretary, respectively, of said board of school trustees, to appear before said committee at the council chamber in the city hall of said city on June 14, 1905, at 2 o'clock p. m., and bring with them such books, papers, and contracts in their possession, relative to, and that they testify concerning the expenditures of school revenues by said board of school trustees; that the committee was in session at the time and place designated in said subpœnas, and the parties so notified refused to appear before said committee, and that it was necessary to have the testimony of said parties and said books and papers in order to make the investigation so ordered by the common council of said city; and further reporting that such board, since August, 1890, had received various amounts of money, proceeds from the sale of various bonds duly issued by said city for the purpose of constructing new school buildings recommended by said board, which buildings had been constructed, but at a greater cost than the contract price therefor, by reason of the payment for extra work and material used in the construction of said buildings; that, in the investigation of this subject it was necessary to have the testimony, books, and papers of said board relative thereto. Upon the facts so reported, appellant asked that the court make an order requiring appellees to appear before said committee at a time to be fixed by the court, and testify and furnish the books and papers called for by said subpœnas, for the use of the committee in making such investigation. To the report so made to the court, appellees appeared and moved to dismiss the same, for the reason that there is no law authorizing such proceeding. The court, over appellant's objection and exception, sustained said motion and entered judgment, dismissing the proceedings. From this ruling and judgment, appellant appeals.

It is conceded that the investigation proceedings instituted by the common council is not based on any ordinance passed by that body, but is predicated wholly upon an act of the General Assembly “concerning municipal corporations” approved March 6, 1905, Acts 1905, p. 257, c. 129, § 54. That part of the section claimed to be applicable reads as follows: “The common councils of every city shall have power to supervise and investigate all departments, officers and employés of the government of such city, and to examine into any charge preferred against them, or any of them, and into the affairs of any corporation, firm or person in which the city may be interested, or with which it may have entered late a contract, or may be about to do so.” With this provision as a basis for sustaining this appeal, naturally two questions are presented: (1) Is a school trustee of a city an officer of the government of such city? (2) Is the school city a corporation in which the civil city is interested in the sense contemplated in said enactment? The affirmance of one of these questions, at least, is necessary in order to sustain appellant's contention. Appellant insists that by “a broad and liberal construction” of section 54, supra, the language used is sufficient to indicate a legislative intention to make school trustees officers of the government of the city, because of their duty relative to the government of schools. Conceding that the above provision deals with matters of interest to the general public, and therefore entitled to a liberal construction (Board of Commissioners v. Davis, 136 Ind. 503, 511, 36 N. E. 141, 22 L. R. A. 515), yet liberality in that regard does not extend to give courts authority, under the guise of judicial construction, to legislate into a statute, a legislative intention or subject not fairly within its purview. The enactment in question, in our judgment, only purports to deal with matters concerning municipal corporations, in the sense in which the body corporate has reference to the administration and government of the local or internal affairs of the civil towns and cities as a subordinate branch in the system of state government. In Scott v. City of Laporte, 162 Ind. 34, 43, 68 N. E. 278, 69 N. E. 675, it is said that “such a corporation can only exercise the following powers: First, those granted in express words; second, those necessarily implied in or incident to the powers expressly granted; and third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.” The contention of appellant depends upon a warrant of power to be found in section 54, supra, authorizing the common council of the civil city to investigate the financial affairs of the school city, which is declared to be a distinct legal entity from that of the civil city. Section 5914, Burns' Ann. St. 1901; Scott v. City of Goshen, 162 Ind. 204, 206, 70 N. E. 79;State v. Ogan, 159 Ind. 119, 63 N. E. 227. It is organized only for educational purposes. It is a creature of the Legislature for a special object, intrusted with powers and charged with duties belonging to the state. Wilcoxon v. City of Bluffton, 153 Ind. 267, 271...