Houser v. State ex rel. Bent

• Decision Date: 14 December 1915
• Docket Number: No. 22823.,22823.
• Citation: 110 N.E. 665,184 Ind. 88
• Parties: HOUSER et al. v. STATE ex rel. BENT et al.
• Court: Indiana Supreme Court

184 Ind. 88

110 N.E. 665

HOUSER et al.

v.STATE ex rel. BENT et al.

No. 22823.

Supreme Court of Indiana.

Dec. 14, 1915.

Appeal from Circuit Court, Miami County; Joseph N. Tillett, Judge.

Action by the State, on the relation of Walter S. Bent, Commissioner, etc., and others against Burvia A. Houser and others. Judgment for plaintiffs, and defendants appeal. Transferred from Appellate Court under section 1405, Burns 1914. Reversed, with instructions.

Albert Ward, of Peru, and A. N. McCracken, D. F. Brooks, and W. G. Todd, all of Wabash, for appellants. Walter S. Bent and Alvah Taylor, both of Wabash, for appellees.

SPENCER, J.

The sole question properly presented by this appeal may be thus stated: Are the sureties on a bond executed by a county surveyor as drainage commissioner ex officio, pursuant to the provisions of section 6140, Burns 1914, liable for the defalcation of their principal while he is acting as commissioner of construction under the provisions of section 6143, Burns 1914? Section 6140, supra, being section 1 of the drainage law of 1907 (Acts 1907, p. 508), provides that:

“It shall be the duty of the board of commissioners of each county in this state, at their first regular session in January after the taking effect of this act, to appoint a drainage commissioner, who shall be a person of intelligence and good judgment, and a reputable citizen of the county, who shall hold his office for two years and until his successor shall be appointed and qualified, unless sooner removed by the board of commissioners. *** Every such drainage commissioner shall, before entering upon the discharge of his duties, take and subscribe an oath of office, and shall give bond payable to the state of Indiana, with sureties and in a penalty of not less than five thousand dollars, to be filed with and approved by the auditor of such county, conditioned for the proper and faithful discharge of his duties, and that he will account according to law for all money that shall come to his hands as such commissioner.”

It further provides that the-

“county surveyor shall be ex officio a drainage commissioner, and shall give a bond as above required of the drainage commissioner in addition to his ordinary official bond.”

Section 3 of the same act provides for the appointment by the court of a third drainage commissioner who shall act with the commissioners above provided for, whenever a drainage petition is referred to them for investigation and report.

Section 4 of said act, which is section 6143, supra, provides that whenever the court enters an order establishing the improvement prayed for, it shall assign the proposed work-

“to one of the three commissioners above provided for, for construction, or the court may assign it for construction to any disinterested freeholder, of the county, who shall, before entering upon his duties, take and subscribe an oath of office and give bond, payable to the state of Indiana, in such sum as the court may require, conditioned that he will honestly and faithfully perform his duties and account for all moneys that may come into his hands.”

The decision of the question above stated depends on whether the office of ...