McCollom v. Shaw
| Decision Date | 25 October 1898 |
| Docket Number | 2,425 |
| Citation | 51 N.E. 488,21 Ind.App. 63 |
| Parties | MCCOLLOM ET AL. v. SHAW |
| Court | Indiana Appellate Court |
From the Shelby Circuit Court.
Reversed.
T. B Adams, Isaac Carter and Wilson & Thompson, for appellants.
John C Cheney, K. M. Hord and E. K. Adams, for appellee.
The appellee, Jesse Shaw, a member of the board of commissioners of Shelby county, filed his claim before that board on the 10th day of June, 1896. The claim was allowed on the same day by the other two members of the board, in the sum of $ 112.52. Robert McCollom, one of the two appellants here (said board being the other appellant), as a citizen and taxpayer of said county, appealed to the court below, where, a motion to dismiss the appeal having been overruled, the cause was tried by the court. In its special finding the court stated the facts substantially as follows: The appellee, at the time in question, was a duly elected and acting member of the board of commissioners of said county. He served as a member of the board for nine days at its regular March term, 1896, and for the same period at its regular June term, 1896; also for one day at a special called session on the 14th day of December, 1895, and for two days at a special called session on the 6th and 7th days of April, 1896. He paid out for the county for freight and postage due from it, as was necessary, fifty-two cents. We may here remark that it is agreed by counsel that as to these services at regular terms and special sessions of the board, the appellee was entitled to an allowance at the rate of $ 3.50 per day, and that he was entitled to be reimbursed for the amount of fifty-two cents so paid out by him. It is not denied that for the foregoing items the appellee might properly have been allowed the sum of $ 74.02. The dispute here relates to the other items of the claim, amounting to $ 38.50, which were shown in the special finding in substance as follows: The county owned 240 acres of land, upon which were situated certain buildings, described, and an orchard of 160 bearing apple trees. This farm was cultivated and managed by a superintendent elected by said board of commissioners, and residing on said premises, and said farm and buildings were maintained by said board as a "poor asylum," to provide for the paupers of said county, of whom there were twenty-five, who were supported and cared for there. In the spring of 1896, said buildings had become out of repair, so that the stone steps leading into a building had fallen into decay; the cellar walls leaked, and water passed into the cellar; and it became necessary to repair the cellar walls, and to put a cement floor in the cellar. It was also necessary to repair the wash-house, and to paint and re-paper and otherwise repair the main building, at a necessary outlay of a large sum of money; also to build a granary to store wheat raised on the premises. All the apple trees were of one variety, except three trees, and it was proper and necessary that some of the trees should be grafted. Said board decided to make said repairs and improvements, and directed the appellee, as one of their body, to proceed to said poor asylum on the 30th of April and 4th of May, 1896, and to employ labor and procure material, and to point out the kind of repairs needed and desired, and to direct the same, which he did; and the employes were employed to do the work by the day, because the character of the work was such as to impress the board that this was the better way to do the work. The board employed one Hugh Hoskins to graft the fruit trees under the direction of the board; and the board delegated to the appellee, as a member of the board, to meet said Hoskins on the farm on the 12th of May, 1896, and to point out to him the apple trees they desired grafted; also the number to be grafted with different varieties of fruit, and to see that the work was properly done, and to see that said repairs and improvements were progressing as directed; which service the appellee did as a member of said board. The county owned a court-house, county jail, and jailer's residence at Shelbyville, and it became necessary to put in water-closets in the jail, jailer's residence, and court-house, and to build sewers connecting with a sewer in a public street; also to have a large amount of plumbing done in said buildings, to remove an iron railing in the court-room, to change the interior thereof, and to purchase a carpet for the court-room and to make other improvements; all of which was ordered by said board. On the 9th and 15th of May, 1896, the appellee, as a member of said board, and at its request, served two days in supervising said work, overseeing the same, and conducting it according to the wish of the board. Said board had in contemplation the adoption for said asylum of a water system and a heating system, the necessity for which was stated at length in the finding, and, having heard that Marion county, Indiana, had successful systems in operation, said board, on the 20th day of December, 1895, visited the Marion county asylum, to examine said systems, with a view of gaining information in reference thereto, or of adopting the same or some other system in Shelby county; and also examined into the management of said institution, with a view of adopting all useful suggestions.
On the 11th of January, 1896, the appellee and another member of said board served as such one day in employing labor, buying material, having a door cut in a heavy brick wall, to convert an old vault in the court-house into a room for an office by direction of said board, which was afterward occupied as an office by the county superintendent of schools.
February 27, 1896, the appellee, with the other members of said board, served one day as such in making a proper and necessary visit to the poor asylum, for the purpose of taking an inventory of the personal property of the county in possession of an outgoing superintendent, and to see that he was properly accounting for the same.
On the 12th of March, 1896, a new superintendent having been installed in the poor asylum, it became necessary and proper, it was found, for the appellee and the other members of the board to visit said asylum, and to advise and direct him as to the management and control of the paupers of said asylum, which they did.
A public bridge over Blue river had become out of repair, and said board decided to repair it; and on the 14th of April, by direction of the board, one of their number went to a mill to purchase lumber for the repairs, and the appellee, with the other member, was directed by the board to employ the hands, tear up the old floor, and direct the employes when and how to put down the new floor and direct the work on the same, which was done by the appellee. It became proper and necessary for said board to erect a bridge over Big Sugar creek, which the board decided to do, and said board, with the appellee as a member, served one day in locating said bridge, and in staking off the location for the abutments and piers, on a day when the board was not in regular or special session, but had come together on their own motion to locate the bridge. At the time the appellee rendered the services in looking after the repairs at the poor farm, the court-house, the county bridges, and when he visited the Marion county poor farm, the board of commissioners was not in a regular, special, or called session.
Upon these facts the court stated as its conclusions of law, that the appellee served as a member of the board of commissioners of Shelby county, in the discharge of his duty as such commissioner, for thirty-two days, and expended fifty-two cents for the county, which he should have refunded to him, and that he should recover against said board $ 112.52, and that the appellant McCollom should pay the costs; to which conclusions the appellant McCollom excepted.
It is contended on behalf of the appellee that the court erred in overruling the motion to dismiss the appeal, it being suggested in argument that no appeal lies from the action of a board of county commissioners in allowing a claim against the county. The right of appeal in such cases is provided by statute and recognized by many decisions. See sections 7856, 7859, Burns' R. S. 1894 (5769, 5772, Horner's R. S. 1897); Myers v. Gibson, 147 Ind. 452, 46 N.E. 914; Gemmill v. Arthur, 125 Ind. 258, 25 N.E. 283; Waymire v. Powell, 105 Ind. 328, 4 N.E. 886; Holman v. Robbins, 5 Ind.App. 436, 31 N.E. 863; Van Auken v. Hook, 6 Ind.App. 610, 34 N.E. 104.
The allowance to the appellee, aside from his reimbursement for the small sum paid by him for freight and postage, was stated by the court to be for service for thirty-two days as a member of the board of commissioners of the county in the discharge of his duties as such commissioner, at the rate of $ 3.50 per day. It appears that the services thus compensated were rendered on twenty-one days when the board was in session, and on eleven days when the board was not in session, and the dispute before us relates solely to the rightfulness of the allowance for these eleven days. The powers of the board of county commissioners are statutory and all its acts must be expressly or impliedly authorized by statute. Gavin v. Board, etc., 104 Ind. 201, 3 N.E. 846; Board, etc., v. Barnes, 123 Ind. 403, 24 N.E. 137; Board, etc., v. Bradford, 72 Ind. 455, 37 Am. Rep. 174; Hight v. Board, etc., 68 Ind. 575; Badger v. Merry, 139 Ind. 631, 39 N.E. 309; State, ex rel., v. Hart, 144 Ind. 107, 43 N.E. 7; Myers v. Gibson, supra. That the law will not uphold or tolerate contracts made by the board of county commissioners with one or more of its members for services for the performance of which it might...
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