Eley v. Miller

Decision Date29 September 1893
Docket Number903
Citation34 N.E. 836,7 Ind.App. 529
CourtIndiana Appellate Court

From the Adams Circuit Court.

Judgment reversed.

J. J M. La Follette and O. H. Adair, for appellant.

J. T France and J. T. Merryman, for appellee.



The appellant was the plaintiff in the court below. In his complaint, he charged that he was a resident taxpayer and owner of real estate in Adams county, Indiana, and that the appellee was the duly qualified and acting auditor of said county; that while appellee was acting as such auditor certain public ditches were established under and by virtue of the drainage laws then in force, one of which was known as the "William Miller ditch"; that of the costs of such proceeding the appellee taxed and collected of appellant the sum of $ 4.75 more than he was entitled to receive, and also added the sum of $ 1.50 thereto, which he also collected of appellant.

There are other similar allegations with reference to another proceeding known as the "Frederick Hahnet ditch," in which the amount of fees charged to have been illegally collected is stated as $ 2.20, with the further sum of $ 1.50 added thereto. It is also alleged that all fees, costs, and moneys so collected were excessive, extortionate, wrongful, and without authority of law; that appellant made demand of appellee to refund the same, but that he refuses so to do.

The appellee answered (1) the general denial, and (2) specially setting out and itemizing the various charges for services.

The court overruled a demurrer to the second paragraph, and appellant then replied in denial.

There was a trial by the court and, at the request of the appellant, the court made a special finding of the facts and stated the conclusions of law thereon. Appellant excepted to the conclusions of law. The errors assigned are (1) the overruling of the demurrer to the second paragraph of the answer, and (2) that the court erred in its conclusions of law. The gravamen of the action, as made by the complaint, is the illegal collection of certain fees and moneys. The second paragraph of the answer sought to show that such fees and charges were legal. It is only an argumentative denial. There is no available error in overruling the demurrer to it.

The special finding shows in brief that in the year of 1890 William Miller and others filed their petition for the location of a public ditch, in the auditor's office of Adams county, and with the appellant, who was the auditor of said county; that said petition was presented to the board of commissioners of said county; that said board appointed viewers, and that said viewers made their report to said board, and that said board approved the report of said viewers and ordered that said ditch be constructed; that all such proceedings were regular and according to law; that the appellant, as the auditor of said county, taxed in said proceedings the following costs therein, to wit:

Approving and recording bond

$ 1 00

Recording petition and order of board

1 50

Certified petition and order of board

2 00

Recording report

3 50


2 50

Copy of record

2 00

That said costs were, by the viewers, afterwards duly apportioned among all the land-owners according to their respective interests and assessment for benefits therein; that the amount apportioned to plaintiff, as his share therein, was $ 8.12, of which the appellee received as his own costs the sum of $ 4.75; that, afterwards, the appellee as such auditor, sold the allotments of work on said ditch, as required by law; that the appellant became a purchaser of one allotment at said sale; that appellee, as such auditor, contracted in writing with the appellant to complete the allotment so bid off by him, and in accordance with the plans and specifications of the same; that the appellee did individually and not as such auditor and officer, make and write for said appellant the said contract and bond, and did exact of and from him the sum of $ 1.50, and did not exact and take the same as costs in said cause, but simply exacted the same as a remuneration for his work and labor in preparing the same; that the labor in preparing the same was reasonably worth the sum of $ 1.50.

The findings with reference to the "Hahnet ditch" are similar, except as to the amount of costs taxed and money collected, the items being as follows:

Approving and recording bond

$ 1.00

Recording petition and order of board


Certified copy of petition and order of board


Recording report




Copy of record and specifications


Posting notices


That the amount thereof duly apportioned to the appellant as his share thereof was $ 3.65, of which amount the appellee, as such auditor, received as his own cost, the sum of $ 2.50.

The court stated the conclusions of law as follows:

"First. That the taxation of said costs by the defendant, as such auditor, as set out in the above findings was legal and right, and that said defendant, as such auditor, was legally and justly entitled to tax and collect the same.

"Second. That the defendant was legally entitled to charge the real value of his services for making and writing the said bonds and contracts mentioned and set out in the above findings, and that his charges therefor were just, equitable, and right, and that the plaintiff ought not recover in this cause."

By the statutes of this State, the board of county commissioners is clothed with various and extraordinary powers. It sometimes exercises judicial functions, and sometimes administrative and executive functions. Sometimes it serves the public interests exclusively, and at others it acts for private individuals only. It is sometimes a court and sometimes an executive body. These functions are often combined in the same proceeding, at the various stages. The act which went into effect September 19, 1881 (sections 4285 to 4317, inclusive, R. S. 1881), gives the power and prescribes the procedure for the location and establishment of public ditches by the board of commissioners. It is apparent, from the whole tenor of the act, that in constructing such improvements the board serves primarily the individual persons whose lands are to be benefited; the public interest is only subserved incidentally. The board is made the medium by which quasi public improvements are promoted and secured. The method of procedure is prescribed by the statute. In such proceedings, the board at some stages acts judicially, as a court, and at other stages in an administrative or executive capacity. The clear intent of the statute is that the whole cost of the improvement shall be ultimately borne by the lands benefited, and that no part thereof shall be borne by the county. Whatever acts are done by the board, or services rendered by any officer thereof, are done at the instigation and for the persons whose lands are to be improved.

It is the settled policy of the legislation of this State to deny to public officers constructive fees and salaries. A public officer can not successfully assert a claim for fees, unless he can produce a statute conferring such right, either in express terms or by fair implication. This has often been decided in this State. Hawthorn, Sheriff, v. Board, etc., 5 Ind.App. 280, 30 N.E. 16; Stiffler v. Board, etc., 1 Ind.App. 368, 27 N.E. 641; Board, etc., v. Johnson, 127 Ind. 238, 26 N.E. 821; Board, etc., v. Barnes, 123 Ind. 403, 24 N.E. 137; Board, etc., v. Gresham, 101 Ind. 53; Noble v. Board, etc., 101 Ind. 127; Board, etc., v. Harman, 101 Ind. 551; Wright, Aud., v. Board, etc., 98 Ind. 88; Donaldson v. Board, etc., 92 Ind. 80; Nowles v. Board, etc., 86 Ind. 179.


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1 cases
  • Eley v. Miller
    • United States
    • Indiana Appellate Court
    • September 29, 1893
3 books & journal articles
  • On the Proper State of Things: Multijurisdictional Practice for the Kansas Practitioner
    • United States
    • Kansas Bar Association KBA Bar Journal No. 74-2, February 2005
    • Invalid date
    ...be indefinite as to some transactions ... A general definition of the term frequently quoted with approval is given in Eley v. Miller, 7 Ind. App. 529, 34 N.E. 836, 837, as follows: "As the term is generally understood, the 'practice' of the law is the doing or performing services in a cour......
  • In-house Counsel Beware: Corporate Attorneys and the Practice of Law in Kansas and Missouri
    • United States
    • Kansas Bar Association KBA Bar Journal No. 88-4, April 2019
    • Invalid date
    ...or may not be depending in a court.’” State ex rel. Boynton v. Perkins, 138 Kan. 899, 907-08, 28 P.2d 765 (1934) (quoting Eley v. Miller, 7 Ind.App. 529, 34 N.E. 836 [1893]).[9] Advising Kansas clients on legal matters is clearly the “practice of law” in Kansas.[10] This court has repeatedl......
  • In-house Counsel Beware: Corporate Attorneys and the Practice of Law in Kansas and Missouri
    • United States
    • Kansas Bar Association KBA Bar Journal No. 88-4, April 2019
    • Invalid date
    ...may not be depending in a court.'" State ex rel. Boynton v. Perkins, 138 Kan. 899, 907-08, 28 P.2d 765 (1934) (quoting Eley v. Miller, 7 Ind. App. 529, 34 N.E. 836 [1893]).[9] Advising Kansas clients on legal matters is clearly the "practice of law" in Kansas.[10] This court has repeatedly ......

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