Garrigus v. Board of Commissioners of Howard County

• Citation: 60 N.E. 948,157 Ind. 103
• Decision Date: 05 June 1901
• Docket Number: 19,119
• Parties: Garrigus v. Board of Commissioners of Howard County et al
• Court: Indiana Supreme Court

60 N.E. 948

157 Ind. 103

Garrigus v. Board of Commissioners of Howard County et al

No. 19,119

Supreme Court of Indiana

June 5, 1901

From Hamilton Circuit Court; J. F. Neal, Judge.

Action by Milton Garrigus against the board of county commissioners to recover for services of expert accountants in examination of certain public records. From a judgment for defendants plaintiff appeals.

Reversed.

M Bell, W. C. Purdum, F. E. Gavin, T. P. Davis, J. L. Gavin, G Shirts and W. R. Fertig, for appellant.

J. C. Blacklidge, C. C. Shirley and C. Wolf, for appellees.

OPINION

Dowling, J.

This was an action upon an agreement in writing made by the board of commissioners of Howard county with two expert accountants for services to be performed by the latter in the examination of certain public records and accounts, and the collection of such sums of money as might be found due to the county. The suit was commenced in the Howard Circuit Court, and the venue was changed to the county of Hamilton. The board filed a demurrer to the complaint for want of facts, and it was sustained. Error is assigned upon this decision.

The material allegations of the complaint were these: Errors were supposed to exist in the records, vouchers, and settlement sheets in the office of the auditor of Howard county, and in other public offices; by reason of such errors, mistakes, and omissions, large sums of money were, in fact, due to Howard county; the existence of such errors could be ascertained only by careful search by skilled experts; no officer of the board or county possessed the requisite skill for such investigation. Fleener and Hunter were expert accountants, and were qualified to make the necessary examinations.

At the regular June term, 1893, of said board, Fleener and Hunter made a written proposition to said board whereby they offered to perform said work and to collect such moneys as might be found due to the county, without cost to the county, and to pay the same into the county treasury; for these services they were to receive a sum equal to one-half the amount collected and paid in; this proposition was accepted by the board, and its record stated that an indispensable public necessity existed for the employment of the said expert accountants. As a part of the same order, the auditor was directed to issue warrants on the treasurer for all sums becoming due to them under said employment. Fleener and Hunter proceeded to make the proposed investigation, and, after great labor and expense, discovered divers errors and omissions which had resulted in loss to the county; these errors and omissions were, through the exertions of the experts, corrected and supplied, and the moneys discovered by the accountants to be due to the county in consequence of such errors and omissions were by them collected and paid into the county treasury; all of the conditions of said contract to be performed by the said Fleener and Hunter were performed by them, and they became entitled to $ 2,021.81 with interest thereon, for their services. In pursuance of said contract, the auditor of said county drew his warrant in favor of said Fleener and Hunter for $ 1,277.09 being a part of the amount to which they were entitled; afterwards, the appellant, who was such auditor, for the reason that no claim for said sum had been first filed with him and presented to the board for allowance, repaid the said sum to the county on demand of the county, and the said Fleener and Hunter by their written assignment transferred all of their claim under their said agreement to the appellant. Fleener and Hunter were made defendants, and filed their answer admitting all of the allegations of the complaint.

The particular sections of the statutes necessary to be considered are these: "Section 39. The board of county commissioners shall, unless in cases of indispensable public necessity, to be found and entered of record as part of its orders, make no allowance not specifically required by law to any county auditor, clerk, sheriff, assessor or treasurer, either directly or indirectly, or to any clerk, deputy, bailiff or any employe of such officer; nor shall they, except in cases above provided, employ any person to perform any duty required by law of any officer, or for any duty to be paid by commission or percentage. For a violation of these provisions, each member of such board favoring the same shall be guilty of a misdemeanor, and, on conviction, shall be fined in any sum not less than double nor more than five times the amount of such allowance, to which may be added imprisonment in the county jail for any period not more than sixty days, and the office of such commissioner shall be declared forfeited. If it be found necessary, and so entered of record, to employ any person to render any service as contemplated in this section, as a public necessity, the contract for such employment shall be spread of record in said court; and, for such services rendered, the claimant shall file his account in said court ten days before the beginning of the term, and any taxpayer shall have the right to contest the claim." Acts 1879, s. s., pp. 130, 142, § 39; § 5766 R. S. 1881; § 7853 Burns 1894. "Such commissioners shall be considered a body corporate and politic by the name and style of 'The board of commissioners of the county of -----'; and as such, and in such name, may prosecute and defend suits, and have all other duties, rights and powers incident to corporations, not inconsistent with the provisions of this act." § 7820 Burns 1894, § 5735 R. S. 1881. "Such commissioners, in their respective counties, shall have power at their meetings: First. To make orders respecting the property of the county, in conformity to law; * * * and to take care of and preserve such property. * * * Third. To audit the accounts of all officers having the care, management, collection or disbursement of any moneys belonging to the county or appropriated for its benefit. Fourth. To perform all other duties that may be enjoined on them by any law of this State." § 7830 Burns 1894, § 5745 R. S. 1881.

The first ground upon which the sufficiency of the complaint is denied is that the facts constituting the "indispensable public necessity", mentioned in the statute, were not found and entered of record as a part of the order of the board. The facts out of which the supposed indispensable necessity arose fully appeared in the proposition of the experts which was spread upon the record, and constituted a part of the entry in the proceeding. The order of the board then recites that, in the judgment of the board, "it would be to the interests of the county to accept the same (the written proposition of F. and H.), and that an indispensable public necessity exists for the employment of an expert accountant to examine the books, vouchers, and settlements in the various offices of Howard county," etc. This statement of the necessity for such employment and allowance, we think, was sufficient. The statute does not say that the facts constituting the necessity shall be shown. The Constitution of this State, § 28, article 4, declares that "No act shall take effect until the same shall have...