Potts v. Bennett

• Decision Date: 31 January 1895
• Docket Number: 17,151
• Citation: 39 N.E. 518,140 Ind. 71
• Parties: Potts v. Bennett et al
• Court: Indiana Supreme Court

39 N.E. 518

140 Ind. 71

Potts v. Bennett et al

No. 17,151

Supreme Court of Indiana

January 31, 1895

From the Vanderburg Superior Court.

The judgment is affirmed.

C. L Wedding, W. H. Gudgel and S. R. Hornbrook, for appellant.

W. W Ireland, J. S. Buchanan, A. Gilchrist and C. A DeBruler, for appellees.

OPINION

McCabe, C. J.

The board of commissioners of Vanderburg county, at their September term for 1893, entered an order "that the court house, * * furniture and fixtures therein and the boiler house, be insured for the sum of * * $ 352,000 for the term of five years, and that such insurance be placed in the insurance companies represented by Thomas Kerth & Son, A. M. Weil & Bro., and Bennett & Odell. * * It was ordered that the following named persons be allowed the sums set opposite their names, respectively for the accounts stated, the same to be payable one-half in three months and one-half in six months, with interest at the rate of 6 per cent. per annum, viz.: Bennett & Odell * * $ 3,210.88 for premium on $ 161,000 insurance for five years on court house, jail, and boiler house, and contents; A. M. Weil & Bro. * * $ 3,210.91 for premium on $ 161,000 for five years on court house, jail, and boiler house, and contents; Thomas Kerth & Son * * $ 598.30 for premium on $ 30,000 insurance for five years on court house, jail, and boiler house, and contents."

Thereupon the appellant filed an affidavit before the board showing that he was a heavy taxpayer of said county, and a resident citizen thereof, "and is aggrieved by said decisions and allowances, and is interested therein as such taxpayer * * and for the further reason that said court (house) and jail are made and built almost solidly of stone and iron, and that they are fireproof, and that it would be difficult, if not impossible, to burn or materially injure them by fire; that the county treasury is practically empty, and there is no money therein to pay said allowances; that unusual stringency in money matters exists; that said alleged insurance is useless, said allowance extravagant, wasteful, and wholly unnecessary, and throwing away the public money at a time when taxation is unusually high and burdensome, and the county treasury depleted and empty; that said contracts, decisions, and allowances were made without any notice by publication, or otherwise, without competition, though there are a dozen or so good, reputable insurance agencies in the city of Evansville, none of whom, as he is informed and believes, had any notice of said contracts, decisions or allowances, or chance to compete for said insurance. Wherefore, he prays an appeal," etc. He also filed an appeal-bond to the approval of the auditor, who certified the proceedings to the superior court of said county, to which the appeal was prayed as appellant claims under sections 7856, 7858, and 7859, Burns R. S. 1894 (R. S. 1881, sections 5769, 5771 and 5772.)

Upon the motion of the appellees, the superior court dismissed the appeal to that court, and from that decision appellant appeals to this court. By the appeal, and the grounds thereof as set forth in the affidavit showing appellant's interest and grievance, it is proposed to get rid of the whole allowance as it is called, and for that reason the insurance agents, to whom the allowances were made, are made appellees in the superior court, and also in this court. There is, therefore, more than $ 3,500 in controversy by the appeal. The jurisdiction is, therefore, in this court, if it would otherwise, in any event, be in the Appellate Court. The action of the superior court in dismissing the appeal is assigned as the only error.

It is contended by the appellant "that the only reasonable construction of sections 5769 and 5771, R. S. 1881 (Burns R. S. 1894, sections 7856 and 7858) is, that an appeal lies in all cases and in the case presented here. It makes no difference [counsel say] how the claim arises, whether from a shameless proceeding such as the one disclosed by the record here, or one arising out of the most meritorious contract. It must take its course [they say] as provided by the sections cited."

It has become thoroughly settled in this court, that the board of commissioners are clothed by statute with administrative or ministerial powers and also with judicial powers.

When they exercise administrative or ministerial functions they do not act as a court, but in their capacity as a corporation. When they exercise judicial functions, then they act as a court. It is only when they act as a court and exercise judicial functions that an appeal lies from their decisions. Platter v. Board, etc., 103 Ind. 360, 2 N.E. 544; O'Boyle v. Shannon, 80 Ind. 159; Bunnell v. Board, etc., 124 Ind. 1, 24 N.E. 370.

It is contended by the appellant that by section 7858 (5771), supra, it is provided that "From all decisions for allowances other than those provided for in the preceding section [which are for allowances for voluntary services or things voluntarily furnished for the public use], an appeal may be taken * * to the circuit court," etc., and that in this case there was an allowance, not for services voluntarily rendered nor for things voluntarily furnished for the public use, and hence, by the terms of the statute, an appeal is expressly authorized. Ordinarily an allowance or disallowance of a claim against a county involves judicial action from which an appeal is authorized by this section. But it must be borne in mind that the allowance here is a mere incident to and part of the whole order. And the appeal is from the whole order. The main part of the order appealed from is the contracts of insurance on the county property for a period of five years and the allowances were to pay the premium on that contract. If it be conceded that the contracts of insurance were themselves ministerial acts on the part of the board, as we think they clearly were, then they can not be reviewed and set aside on appeal. And if the allowance to the insurance agents for the payment of the premium on such contracts may be appealed from, that is, if that part of the order may be appealed from without appealing from the whole order, and on such appeal may be set aside and annulled, yet that would have the same effect as appealing from the contract part of...