Bd. of Com'rs of Wayne Cnty. v. Dickinson

• Decision Date: 23 May 1899
• Citation: 153 Ind. 682,53 N.E. 929
• Parties: BOARD OF COM'RS OF WAYNE COUNTY et al. v. DICKINSON.
• Court: Indiana Supreme Court

153 Ind. 682

53 N.E. 929

BOARD OF COM'RS OF WAYNE COUNTY et al.

v.DICKINSON.¹

Supreme Court of Indiana.

May 23, 1899.

Appeal from circuit court, Wayne county; H. C. Fox, Judge.

Action by Samuel Dickinson against the board of commissioners of the county of Wayne and others. From a judgment for plaintiff, defendants appeal. Reversed.

Frank L. Littleton, Frank M. Smith, and Lee & Grimes, for appellants. Thomas J. Study and Lewis D. Stubbs, for appellee.

JORDAN, C. J.

Appellee commenced this action on the 8th day of September, 1897, to secure a judgment in the lower court declaring null and void a certain contract entered into between the board of commissioners of the county of Wayne and appellant Mayberry M. Lacey, and perpetually enjoining said board, together with the county auditor and county treasurer, from ordering the payment of any money, or from drawing a warrant upon the county treasury and from paying any money therefrom to said Lacey for services rendered by him under said contract, and also perpetually enjoining Lacey from receiving any order or warrant from either the board of commissioners or the county auditor, or from receiving any money whatever from the county treasurer in payment of his services already rendered and thereafter to be rendered under or pursuant to such contract. The complaint discloses that the plaintiff is a taxpayer of Wayne county, Ind., and the defendants, other than Lacey, are the board of commissioners, the auditor, and treasurer of said county; that on April 17, 1897, the board of commissioners made and entered of record the following order: “Whereas, it appears to the board of commissioners of the county of Wayne that there is a large amount of money due the county of Wayne and state of Indiana on account of taxes due on omitted, concealed, and unassessed taxable property in other counties and states, which property has been falsely, fraudulently, and unlawfully concealed from the proper officers of said county, and the said officers are unable to discover the same, the taxes upon which falsely, fraudulently, and unlawfully concealed taxable property are lawfully due the said county of Wayne and state of Indiana; and whereas, the said board of commissioners finds that an indispensable public necessity exists for the employment of an experienced and competent person to make diligent search in other counties and states for such omitted, concealed, and unassessed taxable property, which property has been falsely, fraudulently, and unlawfully concealed from the proper officers of said county, and such officers are unable to discover the same, or to go to other counties and states to attempt a discovery of the same, the taxes upon which property are lawfully due the said county of Wayne and state of Indiana; and it appearing, and the said board believing it, to be to the best interest of said Wayne county and the state of Indiana that such a search be made, and that it is impossible for the officers of Wayne county to make such a search, and it appearing to the board that M. M. Lacey, of Fountain City, Wayne county, Indiana, is an experienced and competent person in searching for and finding such concealed, omitted, and unassessed taxable property: It is therefore ordered by the board of commissioners of the county of Wayne that the said M. M. Lacey be, and he is hereby, authorized, employed, and directed to make diligent and careful search, in such other counties and states as he may deem fit, for omitted, concealed, and unassessed taxable property, the taxes upon which are lawfully due the said county of Wayne and state of Indiana, and, upon discovery thereof, to faithfully, honestly, and impartially report the same to the county auditor or county assessor, who shall proceed, as directed by the statute of the state of Indiana in such cases made and provided, to assess said property and enter the same on the tax duplicate then in the hands of the county treasurer for collection.” In pursuance of and under this order, on the same day, the board entered into a written contract or agreement with appellant Lacey, which contract was spread of record immediately following the above order. By the terms of this contract said board employed him to make a careful and diligent search in counties other than Wayne in this and other states to discover “omitted, concealed, and unassessed taxable property” liable to taxation in Wayne county, Ind. Appellant Lacey, under this contract, agreed, upon his part, to make a careful and diligent search for such property, and to honestly and impartially report the same to the auditor or assessor of Wayne county for assessment and entry on the tax duplicate of that county. It was further stipulated in the contract that Lacey was to receive and be paid for his said services a compensation equal to 25 per cent. of the amount of taxes collected upon such omitted property discovered and reported by him, and collected through his efforts. Nothing, however, was to be due or payable to him as a compensation for his services until the taxes on the property discovered and reported by him had been collected and paid into the county treasury, and he was to bear all expenses...