State ex rel. French v. Johnson

• Decision Date: 05 March 1886
• Parties: State ex rel. French v. Johnson, Auditor, etc.
• Court: Indiana Supreme Court

105 Ind. 463

5 N.E. 553

State ex rel.French

v.Johnson, Auditor, etc.

Supreme Court of Indiana.

Filed March 5, 1886.

Appeal from Gibson circuit court.

Thomas R. Paxton, for appellant.

L. C. Embree, for appellee.

Niblack, C. J.

This was a proceeding by the state on the relation of George W. French against John W. Johnson, auditor of Gibson county, for a writ of mandate to compel the latter to draw a warrant upon the county treasurer to pay for the repair of a ditch under the provisions of section 10 of the drainage act of April 6, 1885, (Acts 1885, p. 129.) The complaint charged that under the “act to enable the owners of wet lands to drain and reclaim” the same, approved March 9, 1875, a petition was presented to the board of commissioners of Gibson county, at its June term, 1880, by resident freeholders, praying for the drainage of certain lands in that county, by the construction of a ditch therein, particularly described, that the board considered the matters presented by such petition, and appointed viewers to examine the premises described; that said viewers reported in favor of the proposed drainage, and that it would be a work of public utility and beneficial to the public health; that such other and further proceedings were had in the premises as resulted in the construction and completion of the proposed work, which became known as the “Richland Creek Ditch;” that in August, 1885, Alexander H. Polk, then and still the surveyor of the said county of Gibson, acting under and pursuant to the provisions of the drainage act, approved April 6, 1885, contracted with George W. French, the relator, to clean out and repair the said Richland Creek ditch, the same being then out of repair, and in places partly filled up; that the said French had fully performed his contract by cleaning out said ditch under the supervision of the said Polk, as such surveyor, and restoring the same to its full dimensions, both as to width and depth, as required by the original specifications when it was constructed; that after inspecting and measuring the work so done by the said French, the said Polk, as such surveyor, on the twenty-eighth day of November, 1885, executed his certificate in writing, in which and whereby he certified to the said Johnson, as auditor of said county of Gibson, the cost of such work, and that there was due and owing to the said French the sum of $607.37, for the cleaning out and repairing of said ditch as stated; that said French presented said certificate to the said Johnson, auditor as aforesaid, and demanded of him a warrant upon the county treasurer for said sum of money so certified to be due him, the said French; that said Johnson refused, and still refuses, to draw a warrant as he was requested to do, and said sum of money still remains due and unpaid; that there were, at the time of the presentation of said certificate, and still are, ample funds in the county treasury, belonging to the county revenue, for the payment of the sum so certified to be due by the county surveyor. Johnson entered an appearance to the action, and, waiving the issuing and service of an alternative writ of mandate, demurred to the complaint. His demurrer was sustained, and final judgment was rendered in his favor upon demurrer.

Section 10, of the act of April 6, 1885, makes it the duty of the county surveyor to keep the ditches in his county constructed under any of the drainage laws of the state, now or heretofore in force, in repair, to their full dimensions, as to width and depth, required by the original specifications prescribing their dimensions, and to certify the cost of keeping the same in repair, including his own per diem, to the county auditor of his county, who shall draw his warrant upon the county treasurer in favor of the persons to whom the money shall be owing for making the repairs, which warrant shall, for the time being, be paid out of the county revenue, the county treasury to be reimbursed by the assessment of the cost of such repairs upon the lands adjudged to have been benefited by the construction of the proper ditch, in like proportion as benefits were assessed against such land in the first...