State ex rel. Cohen v. Hawes

• Decision Date: 28 November 1887
• Citation: 14 N.E. 87,112 Ind. 323
• Parties: State ex rel. Cohen and others v. Hawes and others.
• Court: Indiana Supreme Court

112 Ind. 323

14 N.E. 87

State ex rel.Cohen and others

v.Hawes and others.

Supreme Court of Indiana.

November 28, 1887.

Appeal from circuit court, Daviess county; David J. Hefron, Judge.

Gardiner & Taylor and Morris & Newberger, for appellants. John Baker, for appellees.

Mitchell, J.

John Grimsley, as school trustee of Steele township, in Daviess county, on the eleventh day of March, 1885, delivered to R. B. Pollard a certificate which recited, in effect, that there was due the latter $929 for school supplies, bought and received by the township, payable out of the school fund, at the Washington National Bank of Washington, Indiana, on the twentieth day of June, 1886, with 8 per cent. interest.

In a complaint against the trustee and the sureties on his official bond, the appellants as relators alleged that they were the holders of the certificate above referred to, having taken the same in good faith, by assignment, indorsed thereon in writing. They charged that the certificate had been wrongfully and illegally issued, for the following specified reasons: Because (1) the pre-existing indebtedness of Steele township exceeded the amount of 2 per cent. of the assessed valuation of the taxable property therein; (2) that the supplies mentioned in the certificate had never been delivered to, nor received by, the township; (3) that the trustee had not obtained the order of the board of commissioners, authorizing him to contract the indebtedness therein mentioned, as required by sections 6006, 6007, Rev. St. 1881. The court sustained a demurrer to the complaint, and the question presented is whether the appellees, as sureties upon the official bond of Grimsley, are liable by reason of his having thus issued the certificate.

On behalf of the appellants it is contended that the liability of the sureties results from the provisions of section 2 of “An act touching the duties of township trustees with reference to liquidating and contracting indebtedness of townships in certain cases,” approved March 5, 1883, (Acts 1883, p. 114.) This section provides “that any township trustee, in any county of the state of Indiana, who shall contract any debt in the name or in behalf of any civil or school township of which he may be the trustee, contrary to the provisions of sections one and two of ‘An act to limit the powers of township trustees in incurring debts, and requiring them to designate certain days for transacting township business,’ approved March 11, 1875, (the same being numbered six thousand and six and six thousand and seven of the Revised Statutes of the state of Indiana,) shall be personally liable, and liable on his official bond, to the holder of any contract or other evidence of indebtedness, for the amount thereof.” The sections above referred to require township trustees whenever they deem it necessary to incur any debt or debts on behalf of their townships, in excess of the fund on hand, to which such debt or debts are chargeable, and of the fund to be derived from the tax assessed against their respective townships, for the year in which such debt is to be incurred, to procurean order, after due notice as therein provided, from the board of commissioners authorizing them to contract such indebtedness.

As has been seen, the complaint charges that the order or certificate in question had been issued in violation of the statute above referred to, and that it was, moreover, wrongfully and illegally issued, in that no consideration had ever been delivered or received for the certificate. The liability imposed by the act of 1883 requires, as a condition precedent, that the township trustee must have contracted a debt in the name or in behalf of his township, either civil or school, and the debt must have been contracted in violation of the provisions of sections 6006 and 6007. If, therefore, the transaction in which the certificate had its inception was such as to create no debt, or if the debt created was not within the prohibition of the above-mentioned sections, manifestly the statutory liability has not been incurred by any one. It appears from the face of the certificate that it was issued for school supplies bought and received by the township, but the complaint avers that the supplies had never been delivered to, nor received by, the township. We are not required, therefore, to determine whether sections 6006 and 6007 apply to the ordinary debts incurred by the trustee for furniture, apparatus, and other supplies for the schools of his township, nor need we consider the relevancy of the averment that the pre-existing indebtedness of the township exceeded 2 per cent. of the assessed valuation of the taxable property therein. It is only necessary to say, without further remark upon this feature of the case, that, upon the facts as they appear in the complaint, no debt of any description whatever was contracted.

A debt in its more general sense is a specified sum of money which is due or owing from one person to another, and “denotes not only the obligation of the debtor to pay, but also the right of the creditor to receive and enforce payment.” Rap. & L. Law Dict. tit. “Debt;” Shane v. Francis, 30 Ind. 92. It is...