Owen County Council v. State ex rel. Galimore
| Decision Date | 23 May 1911 |
| Docket Number | 21,653 |
| Citation | 95 N.E. 253,175 Ind. 610 |
| Parties | Owen County Council v. The State of Indiana, ex rel. Galimore et al |
| Court | Indiana Supreme Court |
From Owen Circuit Court; Joseph W. Williams, Judge.
Action by The State of Indiana, on the relation of William Galimore and another, against the Owen County Council and others. From a judgment for plaintiff, defendant Owen County Council appeals.
Reversed.
Inman H. Fowler, for appellant.
Willis Hickam, for appellee.
This was a mandate proceeding to require appellant to make an appropriation to pay a judgment recovered by relator Galimore against the Board of Commissioners of the County of Owen. Said board of commissioners, the auditor and the treasurer were parties, but have not joined in this appeal. A demurrer to the complaint was overruled, and the county council excepted and filed an answer in five paragraphs, to the second, third, fourth and fifth of which demurrers were sustained. The first paragraph was a general denial upon which trial was had and a judgment rendered for plaintiff.
Relators have made a motion to dismiss this appeal, on the ground that the codefendants below, the board of commissioners, the auditor and the treasurer of Owen county are not made parties appellant or appellee. The appeal is a term-time appeal, and by the express provision of the statute (§ 675 Burns 1908, Acts 1895 p. 179), it was not necessary that any of the coparties below should be joined as appellants or appellees.
The second reason urged on the motion is that county councils being bodies of limited statutory powers, with ministerial duties only, have no power or authority to prosecute appeals. Relators' theory upon this question is that a county is known only through its board of commissioners, which alone has authority to litigate claims against a county, except in cases in which taxpayers have the right, and in support of their contention cite the cases of Advisory Board etc., v. Levandowsky (1907), 43 Ind.App. 224, 86 N.E. 1024, and Board, etc., v. Wild (1905), 37 Ind.App. 32, 76 N.E. 256.
The latter case was one in which the sole question determined was that the taxpayers of a county who were not parties to an action, could not, over the objection of the board, control an appeal in which the sole defendant was the board of commissioners.
The case of Advisory Board, etc., v. Levandowsky, supra, is based upon the proposition that the advisory board of a township can only maintain such suits as it is expressly authorized to maintain. Here, however, we have a statute with respect to county councils, authorizing suits to be brought against them for certain purposes, and requiring the board of commissioners and the county auditor to be joined with them (§ 5945 Burns 1908, Acts 1899 p. 343, § 28), and appellees have elected to follow that statute here. True, we have no statute expressly providing that county councils may appeal, but as they may be sued in certain civil cases, it would be anomalous to deny them the right of appeal in such cases. We have a statute (§ 671 Burns 1908, § 632 R. S. 1881) that provides for appeals "from the circuit courts and superior courts to the Supreme Court, by either party, from all final judgments." Relators secured a final judgment, requiring the appropriation by the county council of the amount necessary to pay their judgments, and it would require a radical departure from the recognized practice to hold that they may not appeal. They have more than mere ministerial duties to perform. They have the exclusive power to fix the tax rate, also to fix the amount they will appropriate, not exceeding the estimates furnished to them, and the exclusive power to authorize the borrowing of money, and as to those appropriations, necessary after the annual appropriation, it requires the concurrence of two-thirds of the members. §§ 5932, 5937, 5938, 5949 Burns 1908, Acts 1899 p. 343, §§ 15, 20, 21, 32. If they may not appeal in this kind of a case, neither could they upon the character of questions confided to them as shown before, and it would certainly be unwise, if not in direct violation of the statute, to deny the right of appeal. The motion to dismiss the appeal is denied.
The complaint alleges, in substance, that on October 26, 1909, relator Galimore recovered a judgment against the Board of Commissioners of the County of Owen for $ 3,024.40 and costs; that no appeal has been perfected, and the judgment has not been paid nor replevied; that about November 6, 1909, said relator filed a certified copy of such judgment in the office of the auditor of Owen county; that said defendants then had, and as relators are informed and believes, there was a sufficient amount of money in the county treasury belonging to said county with which to pay said judgment, interest and costs, but because no appropriation had been made for the payment of the judgment the auditor refused to draw his warrant; that the auditor and the board of commissioners fixed a day in November, 1909, for a special meeting of the county council, and one week before the date fixed for said meeting prepared and filed in the auditor's office an estimate of the amount necessary to pay the judgment, and also prepared an ordinance authorizing the appropriation; at said special session more than two-thirds of the members were present, and the estimate and ordinance were presented by the auditor and by relator Galimore and his attorney, and a request was made for the adoption of the ordinance, and the appropriation of sufficient funds to pay the judgment; that the council without cause or excuse neglected, failed and refused, and ever since has failed and refused, and continues to refuse, to appropriate any money to pay such judgment; that before this action was brought, Galimore had assigned a portion of the judgment to his co-relator Hickam; that the total amount of the indebtedness of the county, including the judgment, interest and costs, does not exceed two per cent of the taxable property of the county. Prayer for a mandatory order of court against said defendants, and ordering said board of commissioners and said auditor to fix a date and issue the proper call and notice to said defendant Owen County Council to meet in special session, and prepare and place on file in due time the necessary estimate of the amount necessary to pay said judgment, interest and costs, and also an order of appropriation of the necessary amount, and to present such estimate to said defendant Owen County Council when so convened in said special session, and ordering said Owen County Council to make said appropriation; and if there is not sufficient money to make said appropriation, then that said defendant Owen County Council be ordered to authorize said defendant board of commissioners to negotiate a loan, and procure the necessary moneys with which to pay said judgment. There was no alternative writ, but defendants appeared and demurred to the complaint.
The sufficiency of the complaint is challenged by an original assignment of error and upon the ruling on the demurrer, both assigning the want of facts sufficient to constitute a cause of action.
The specific challenge to the complaint is, that under no state of facts would relators be entitled to an order requiring the county council to pass an ordinance authorizing the board of commissioners to borrow money to pay the judgment, or to require the board to secure a loan for that purpose. It will be noted that the prayer of the petition is in the alternative, that is, that if there be not money on hand sufficient to be appropriated, that a loan be required. It must be conceded that while there might be a right to have an appropriation made, if there are available funds on hand unappropriated, relators could not require that the money be borrowed for such purpose; although they might be entitled to have a tax levied. See §§ 5945, 5949 Burns 1908, Acts 1899 p. 343, §§ 28, 32.
In order to obtain a writ of mandate, both an imperative duty and the power to do the act or acts commanded must be shown. State, ex rel., v. Winterrowd (1910), 174 Ind. 592, 91 N.E. 956; Town of Windfall City v. State, ex rel., (1909), 172 Ind. 302, 88 N.E. 505; Board, etc., v. State, ex rel. (1909), 173 Ind. 52, 88 N.E. 673.
It is claimed that the question raised by a demurrer to a petition for a writ of mandate, as well as to the petition and alternative writ, is, not whether relators are entitled to some relief, but whether they are entitled to the specific relief demanded in the petition, or in the petition and alternative writ. The rule is well settled that in case of a petition and alternative writ of mandate, a relator must show himself entitled to the precise and specific relief prayed for or the petition and writ will not withstand a demurrer, or the writ a motion to quash. State, ex rel., v. State Board, etc. (1910), 173 Ind. 706, 91 N.E. 338; State, ex rel., v. John (1908), 170 Ind. 233, 84 N.E. 1; Advisory Board, etc., v. State, ex rel. (1906), 166 Ind. 237, 76 N.E. 986; State, ex rel., v. Connersville Nat. Gas Co. (1904), 163 Ind. 563, 71 N.E. 483; State, ex rel., v. Indianapolis Union R. Co. (1903), 160 Ind. 45, 60 L. R. A. 831; State, ex rel., v. Commercial Ins. Co. (1902), 158 Ind. 680, 64 N.E. 466; Applegate v. State, ex rel. (1902), 158 Ind. 119, 63 N.E. 16; Trant v. State, ex rel. (1895), 140 Ind. 414, 39 N.E. 513.
It is urged by relators, that where the alternative writ is waived and a demurrer is interposed to the petition, it stands the same as any other civil action, and if the petitioner is entitled to any relief, the demurrer should be overruled. This rule is of course sound as applied to ordinary actions, but an action for mandamus is...
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