State ex rel. Brookshire v. Snodgrass

• Decision Date: 24 June 1884
• Docket Number: 11,398
• Parties: The State, ex rel. Brookshire, v. Snodgrass, Trustee
• Court: Indiana Supreme Court

98 Ind. 546

The State, ex rel. Brookshire, v. Snodgrass, Trustee

No. 11,398

Supreme Court of Indiana

June 24, 1884

Petition for a Rehearing Overruled Dec. 11, 1884.

From the Montgomery Circuit Court.

Affirmed, at the relator's costs.

J. F Harney, G. W. Paul, J. E. Humphries, W. W. Thornton and E. V Brookshire, for appellant.

L. J. Coppage, for appellee.

OPINION

Hammond, J.

This was a motion for a writ of mandate. An alternate writ issued as asked. The appellee demurred to the affidavit and the writ for want of facts, which was sustained. To this ruling the appellant excepted, and, after judgment in favor of the appellee upon the demurrer, appealed to this court, assigning for error the ruling excepted to.

The affidavit upon which the relator's motion was based stated substantially that he was superintendent of roads in Clark township, in Montgomery county, by virtue of his election to said office in April, 1882, and held the same until March 2d, 1883, when said office was abolished by an act of the Legislature; that during the time he held said office there came into his hands, by virtue thereof, $ 219.70, and no more, which he duly accounted for by settlement with the county board, and was allowed for his services, as such superinten dent, $ 134, and that there was no money in his hands for its payment; that in June, 1882, the trustee of the township, with the concurrence of the county board, assessed a commutation road tax of $ 2 upon each person liable to work upon the roads in said township, and also levied a road tax of twenty-five cents on each $ 100 of the taxable property of the township, which levy would reasonably yield the sum of $ 2,400. The affidavit then alleged: "And the relator, in executing the duties of his said office, afterwards caused other needed and valuable work to be done on the highways of said township, for which proper vouchers were made as the law requires, and were indorsed by the persons to whom payable. And the relator herein, relying upon the tax levied as aforesaid to indemnify him, advanced the money of his own private means, and took up and paid to the holders thereof the full face value of each of said vouchers or orders from the road-master, amounting in all to $ 1,675.17, which, together with $ 134 allowed him for services, makes total amount due and unpaid $ 1,809.17, all of which is shown by schedule and bill of particulars, with said original vouchers, which are submitted, and to which reference is had."

It is averred that the relator's term of office as such superintendent was shortened in March, 1883, by an act of the Legislature abolishing said office, leaving the township indebted to him in the sum of $ 1,809.12; that Silas T. Ashley, trustee of said township, drew from the treasurer of said county, in June, 1883, the sum of $ 2,200.08, as road funds, being the proceeds of said levy in June, 1882; that Ashley resigned said office of trustee in September, 1883, and turned over said road funds to the appellee, who succeeded him in said office; that the relator, while Ashley was the incumbent of said office, made proper demand upon him for the payment of his claim against the township, and also made proper demand for such payment of the appellee as such trustee, both of which demands were refused.

The schedule of orders of the road-master, alleged to have been paid by the relator, was not filed with the complaint as stated, nor did the complaint contain any description of such orders, nor were the originals or copies thereof filed with the complaint. For these reasons, if for no other, the complaint was clearly insufficient as to such orders. But for the purpose of indicating the legal rights of the parties, for their benefit in future litigation, we will, as near as we may be able, consider the questions which properly lie at the foundation of their controversy.

The relator held the office of superintendent of roads under the first and only election held under "An act concerning roads and highways," approved April 15th, 1881. Acts 1881, p. 535; sections 5064-5090, R. S. 1881. Under the third section of this act (section 5066, R. S. 1881), the township trustee, with the concurrence of the board of county commissioners, was required, in the month of June of each year, to assess a poll tax for highway purposes, to be known as commutation road tax, of two dollars upon each ablebodied man residing in the township, over the age of twenty-one years and under the age of fifty years, with certain exceptions, and also to levy a road tax not exceeding twenty-five cents upon each $ 100 of the taxable property of the township, which were to be collected by the county treasurer and paid upon the warrants of the county auditor to the superintendent of roads of the township to which such funds belonged.

The plaintiff's complaint alleges that such assessment and levy were made in June, 1882, in the township in which the relator was superintendent of roads; that in anticipation of the collection of such assessment and levy, and without any public funds in his hands for that purpose, the relator expended of his own money for needed and valuable work upon the highways in his township, the sum of $ 1,675.17; and that before the collection of such commutation and road tax, the relator's office was abolished, leaving the township indebted to him for the amount so expended.

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