Board of Commissioners of Madison County v. Burford

• Decision Date: 20 November 1883
• Docket Number: 10,422
• Citation: 93 Ind. 383
• Parties: Board of Commissioners of Madison County v. Burford
• Court: Indiana Supreme Court

93 Ind. 383

Board of Commissioners of Madison County v. Burford

No. 10,422

Supreme Court of Indiana

November 20, 1883

Rehearing Date: February, 1884

Reported at: 93 Ind. 383 at 385.

From the Madison Circuit Court.

Judgment reversed.

W. R Pierse and C. B. Gerard, for appellant.

J. W. Sansberry, M. A. Chipman, and J. W. Sansberry, Jr., for appellee.

OPINION

Elliott, J.

Courts are bound to respect as laws the properly authenticated acts of the Legislature, filed by the proper officers and received, in accordance with law, by the secretary of state and placed in the proper depositary. Issues of fact can not be formed for the purpose of investigating the mode of procedure of the co-ordinate departments of government--the executive and legislative. Judicial investigation stops with an examination of the title and contents of the act, and the evidence of its due attestation by the signatures of the Speaker of the House of Representatives and the President of the Senate, and its acceptance and filing, as an act of the Legislature, by the secretary of state. This question received full and careful consideration in Evans v. Browne, 30 Ind. 514, and it was held that courts could not look behind the bill to the legislative proceedings.

In Bender v. State, 53 Ind. 254, the question was presented precisely as it is here; the position there taken was that the bill was not presented to the Governor "within two days next previous to the final adjournment of the General Assembly," and the rule declared in Evans v. Browne, supra, was unhesitatingly adopted and applied. The case of Evans v. Browne, supra, received approval in Edger v. Board, etc., 70 Ind. 331. The question was declared not to be an open one in Bender v. State, supra, and, even if we doubted the soundness of the ruling in the original case, it would be our duty to follow it, but we are well satisfied that the reasoning of Frazer, J., demonstrates the soundness of the rule which prevails in this court. The weight of authority is with our view. In addition to the cases referred to in Evans v. Browne, supra, may be cited Louisiana, etc., Co. v. Richoux, 23 La.Ann. 743; Sherman v. Story, 30 Cal. 253; People v. Burt, 43 Cal. 560; State v. Swift, 10 Nev. 176; S. C., 21 Am. Rep. 721; Koehler v. Hill, 27 Alb. L. J. 195; Brodnax v. Groom, 64 N.C. 244; Eld v. Gorham, 20 Conn. 8; Swann v. Buck, 40 Miss. 268; Green v. Weller, 32 Miss. 650; Pangborn v. Young, 32 N.J.L. 29.

The act of 1875, providing that all contracts for the purchase of stationery and other articles for the use of county officers shall be made by the board of commissioners, is found in the proper depositary, is duly authenticated by the signatures of the presiding officers of both branches of the General Assembly, is in title and contents constitutional, and it is, therefore, the duty of the courts and the people to assume that it was enacted in conformity to the provisions of the Constitution of the State, and not to look behind it to ascertain whether the executive and legislative branches of the State government obeyed the mandates of the organic law. The plain reason for this, as demonstrated by the cases cited, is that there is no higher evidence than the duly authenticated enrolled bill resting in the depositary designated by the supreme law.

The commissioners may, at their option, pay, or refuse to pay, a bill contracted by a county clerk for stationery furnished for the use of his office. Acts 1875, Reg. Sess., p. 32. The clerk in this case bought the stationery, and may have created an absolute charge against himself but not against the county.

The answer of the appellant was good, and the court erred in sustaining appellee's demurrer.

Judgment reversed.

In the argument on the petition for a rehearing, counsel, without questioning the soundness of the decision heretofore announced, insist that we should decide some technical questions presented by them. The first question which they ask us to decide was thus presented in their original brief:

"The first assignment we submit does not present any question for decision, as the record shows that when the demurrer was sustained to the answer, the appellant took leave to amend; and afterward the appellant filed an amended answer. By filing an amended answer, the appellant waived any error there might have been in sustaining a demurrer to the answer. Busk. Prac., p. 286; Thompson v. Toohey, 71 Ind. 296. If this were not true, still there is no question here, as the answer is not in the record."

We looked into the record and found that there was an answer on file; that the ruling on the demurrer to it was exhibited not only by the ordinary record entries, but also by a bill of exceptions, and we supposed it impossible for any one to doubt that the assignment of errors pointed to the ruling on the only answer in the record. As there is but one answer in the record, we think it plain that the assignment fully and unmistakably informed court and counsel of the ruling which appellant asserted to be erroneous. The answer, as amended, was the sole answer in the record, and it was perfectly proper to denominate it "the answer of the appellant."

The next point made by counsel was presented in these words: "There is no averment in the amended answer that the county did not receive and use the articles. There is no averment that they were useless or unnecessary. There is no averment that the price charged was unreasonable. For amended answer see record."

This is not such a presentation of a question as the settled...