Manor v. The State ex rel. Stoltz

• Decision Date: 26 January 1898
• Docket Number: 18,386
• Citation: 49 N.E. 160,149 Ind. 310
• Parties: Manor, Auditor of Jay County, v. The State, ex rel. Stoltz, Trustee of Bearcreek Township
• Court: Indiana Supreme Court

49 N.E. 160

149 Ind. 310

Manor, Auditor of Jay County, v. The State, ex rel. Stoltz, Trustee of Bearcreek Township

No. 18,386

Supreme Court of Indiana

January 26, 1898

From the Jay Circuit Court.

Affirmed.

R. H Hartford, for appellant.

D. T Taylor, for appellee.

OPINION

Jordan, J.

This action was instituted by the State, on the relation of Philip Stoltz, trustee of Bearcreek township, Jay county, Indiana, to obtain a writ of mandate to compel the appellant, as auditor of said county, to issue a warrant on the treasurer authorizing that officer to pay over to the relator, as such trustee, certain moneys due to and belonging to said township as public revenue. The relator prevailed in the action, and a peremptory writ of mandate was awarded, commanding the appellant to issue a warrant upon the treasurer of the county, payable to the relator, for the funds belonging to his township. By the errors assigned, appellant calls in question the sufficiency of the alternative writ of mandate upon demurrer, and complains of the rulings of the court in denying his right to file his interplea, and in overruling his motion to make the complaint more specific, and in sustaining a demurrer to the first paragraph of the relator's return to the alternative writ, and in overruling a motion for a new trial. The alternative writ issued in the cause, and to which the appellant filed his return, recites the filing of a petition for the writ, and also the material facts alleged therein, which, in substance, are as follows: That on the 12th day of June, 1897, there existed a vacancy in the office of township trustee of Bearcreek township in Jay county, Indiana, which vacancy in said office had been judicially determined by the Jay Circuit Court, before said day. That on June 12, 1897, the relator was duly appointed, by the board of commissioners of the county of Jay, township trustee in and for said Bearcreek township, on account of, and by reason of said vacancy in said office. That on the 14th day of June, 1897, he, pursuant to said appointment as such township trustee, filed with the auditor of Jay county his official bond, as required by law, which was duly approved by said auditor, and took the oath of office, and was then and there duly qualified as trustee of said Bearcreek township, and is now, and ever since has been, the trustee of said township, and as such is entitled, under the laws of the State, to the possession and custody of all public moneys due to or belonging to said township, and especially to the possession and custody of $ 3,680.00 public revenue due to said township on July 10, 1897, for the July distribution of that year as follows, to wit: (Here are set out the several amounts and the several funds to which the same belong, aggregating an amount total of $ 3,680.52.) On the 19th day of July, 1897, before the announcement of this action, the relator, as such trustee, demanded of the defendant, as auditor of Jay county, that he issue a warrant on the treasurer of that county in favor of him as trustee of said township for the said funds, etc., but the defendant refused to do so, and still fails and refuses to issue said warrant. The prayer of the petition is recited in the writ, and the defendant, as auditor, is commanded to issue the warrant as prayed for, or show cause, if any, for his failure to discharge this duty. The question is, do the facts entitle the relator to the warrant for the money in the county treasury belonging to the township, of which, as the facts apparently establish, he is the trustee?

The relator, as the trustee of the township, was authorized to receive all moneys belonging to his township. Clause two of section 8068, Burns' R. S. 1894 (5993, R. S. 1881). By section 8075, Burns' R. S. 1894 (6000, R. S. 1881), the county treasurer, immediately after his annual settlement with the county auditor, upon the warrant of the latter officer, is required to pay over to the proper township trustee all moneys in his hands belonging to the township. It is disclosed that the funds for which the relator sought to obtain the warrant had been apportioned to Bearcreek township, and were due and belonging to said township at and before the demand was made upon the appellant for the warrant in controversy. Section 8070, Burns' R S. 1894 (5995, R. S. 1881), provides that the trustee of the township shall superintend the financial affairs of the township, and, with the concurrence of the board of commissioners, shall, at the time therein stated, levy a tax for township, road, and other purposes, on the property of the township, and report the same to the auditor, who shall enter it on the tax duplicate, etc., and the treasurer shall collect the tax as other taxes are collected. Under section 7973, Burns' R. S. 1894 (5895, R. S. 1881), it is made the duty of the auditor, among other things, to issue a warrant on the treasurer, payable to the person entitled to receive the same, for such sums of money as may be fixed by law, etc. The duty of apportioning the several funds belonging to each township in accordance with the law rests upon the auditor, and the duty of paying the money over to the proper township trustee on the warrant of the auditor is enjoined upon the county treasurer, and in each case the duty of these respective officers relates directly to the township. It is clear under the facts that the law made it the imperative duty of appellant, as the auditor of the county, to draw a warrant on the county treasurer, payable to the proper trustee of Bearcreek township, for the money in controversy; and, as no other adequate remedy existed, such duty will be enforced by a writ of mandate. State v. Buckles, 39 Ind. 272; Frisbie v. Fogg, 78 Ind. 269; Wampler v. State, 148 Ind. 557, 47 N.E. 1068, and authorities there cited; Morris v. State, 96 Ind. 597; State v. Board, etc., 136 Ind. 207, 35 N.E. 1100. The alternative writ does not proceed upon the theory that there is any dispute about the title to the office, or conflicting claims thereto. The sole question presented by it relates to the question of appellant's refusal, as auditor, to issue the warrant to the relator. It is shown that the latter had been appointed to fill an existing vacancy in the office of trustee of Bearcreek township, which, before the appointment was made, had been judicially determined. The facts disclosed that a vacancy had occurred in the office in question, which, under the provisions of section 5996, R. S. 1881, the board of commissioners is empowered to fill by appointment, and that the board had exercised this power and appointed the relator, and that he had duly qualified under said appointment by filing his bond to the approval of the auditor, and taken the oath of office as required by law. These facts, at least for the purpose of this suit, fully establish that a vacancy was recognized to exist by the appointing power, and that the relator had been rightfully appointed to fill it. McGee v. State, 103 Ind. 444, 3 N.E. 139; Osborne v. State, 128 Ind. 129, 27 N.E. 345, and authorities cited. The prima facie right or title of the relator to the office of trustee was thereby shown, and his right to exercise the functions thereof, among which was the authority or right to receive the money belonging to the township, followed as a necessary consequence, and, so far as the appellant was concerned it was, under the circumstances,...