Kelly v. State ex rel. First National Bank of Frankfort

• Decision Date: 15 December 1883
• Docket Number: 8767
• Parties: Kelly, Treasurer, v. The State, ex rel. First National Bank of Frankfort
• Court: Indiana Supreme Court

92 Ind. 236

Kelly, Treasurer, v. The State, ex rel. First National Bank of Frankfort

No. 8767

Supreme Court of Indiana

December 15, 1883

From the Clinton Circuit Court.

The judgment is affirmed with costs.

J. N Sims, for appellant.

L McClurg, J. Claybaugh and B. K. Higinbotham, for appellee.

OPINION

Howk C. J.

On the 19th day of March, 1879, an act of the General Assembly of this State was duly approved, entitled "An act to legalize certain acts of the board of commissioners of Clinton county, in the purchase of certain grounds at sheriff's sale; vesting a sufficient title thereto in the said county, providing for the payment thereof, and other matters properly connected therewith, and declaring an emergency."

This act and its preamble are in the words and figures following to wit:

"Whereas, The county of Clinton, in the State of Indiana, was the owner of twenty-five hundred dollars of paid-up stock in the Clinton County Agricultural Society, which society was the owner of grounds containing about fifty (50) acres, and particularly described in a certain deed executed bye Joseph K. Steele, and Mary Steele, his wife, to said Clinton County Agricultural Society, dated on the 1st day of July, 1872, and recorded in deed-record number 36, on page 127, in the recorder's office of said county, which grounds were heavily encumbered by a mortgage for the original purchase-money therefor, and improvements thereon; and

"Whereas, It became necessary that said county, to prevent the loss of her said paid-up stock of twenty-five hundred dollars, should purchase said grounds on the foreclosure of said mortgage, to prevent the same from passing into the hands of private parties; and

"Whereas, Said county, by her board of commissioners, on the 10th day of June, 1876, bid for said grounds, at sheriff's sale, on a judgment and decree for the foreclosure of said mortgage, the sum of seven thousand one hundred and ninety-nine dollars and forty cents, and directed the auditor of said county to draw his order and warrant on the treasurer of said county for said sum, payable on the 27th day of September, 1877; and

"Whereas, Some doubt exists as to the legality of said purchase of said grounds by said board of commissioners, and the right of said auditor to draw said order and warrant, and the right of said treasurer to pay the same, and of the right of said county to a title in fee simple for said grounds, and under a legal and subsisting title to hold the same, under and by virtue of the sheriff's deed made to said county for the said grounds, under the sale aforesaid; therefore,

"Section 1. Be it enacted by the General Assembly of the State of Indiana, That the purchase of said grounds by the board of commissioners of Clinton county, at said sheriff's sale, and the order and warrant of the auditor of Clinton county on the treasurer of said county for said sum be, and the same is hereby legalized.

"Sec. 2. That the title to said grounds, under said purchase, be and the same is hereby legalized and vested in the said county of Clinton, in as full and ample a manner as the same would vest in any individual or corporation entitled by law to hold the same, under said purchase at said sheriff's sale.

"Sec. 3. Whereas, an emergency exists for the immediate taking effect of this act, it shall therefore be in force and take effect from and after its passage."

After this act became a law, the treasurer of Clinton county failed and refused to pay the auditor's order and warrant, therein mentioned and thereby legalized. Thereupon, this proceeding was instituted by the appellee's relator, the holder of such order and warrant, to compel by mandate the payment of such order and warrant by the appellant, as the treasurer of Clinton county. To the relator's complaint and the alternative writ of mandate issued thereon, the appellant filed an answer and return in six paragraphs, of which the first was a general denial, and each of the other paragraphs stated special or affirmative matters by way of defence. The relator's demurrers to each of the special paragraphs of answer and return were sustained by the court, and to each of these rulings the appellant excepted. He then withdrew his general denial, and, declining to plead further, the court rendered judgment for a peremptory mandate against him, as prayed for in the relator's complaint.

In this court, the appellant's counsel challenges, in argument the constitutionality of the legalizing statute, above quoted, and this is really the controlling question for decision in this case. It is claimed by counsel, that the statute is in conflict with...