State ex rel. Holman v. Roach
| Decision Date | 08 April 1890 |
| Docket Number | 15,315 |
| Citation | 24 N.E. 106,123 Ind. 167 |
| Parties | The State, ex rel. Holman, v. Roach, Auditor |
| Court | Indiana Supreme Court |
From the Howard Circuit Court.
Judgment affirmed.
J. F Elliott and L. J. Kirkpatrick, for appellant.
J O'Brien and C. C. Shirley, for appellee.
This was a suit instituted in the Howard Circuit Court to compel the auditor of that county to draw his warrant on the county treasury for certain moneys alleged in the complaint to be due the appellant as surveyor of said county.
The complaint alleges, substantially, that the appellant has been the duly elected and qualified surveyor of Howard county since the 20th day of November, 1888; that as such surveyor it was his duty to review and examine all the public ditches and drains which have been constructed in said county under the ditch laws of the State of Indiana, and to fix and determine the portion thereof that the owner of each tract of land, and each corporation, etc., assessed for the construction thereof, should annually clean out and keep in repair; and at the same time set apart and apportion to each parcel of land to each person, etc., a share or portion of such ditch or drain, according to the benefits to be received thereby, to be cleaned out annually and kept in repair by the owner of each tract of land, and reduce such allotments to writing, and record the same in a book to be kept for that purpose, to be known as the Drainage Record; and to cause to be posted up for not less than ten days, in five public places in each township where lands are allotted, a portion of said work, written or printed notices of the time and place when and where he would hear any and all objections to such allotments; that in discharge of his duties as such county surveyor, he did, on the 5th day of August, 1889, by himself and his sworn deputies, proceed to view and examine the ditches and drains described and set forth in a bill of particulars filed with the complaint; that each and all of said ditches were constructed under and by virtue of the laws of the State of Indiana; that he viewed said ditches and drains, and allotted to each tract of land its portion, as required by law, and posted notices of such allotments, all in accordance with the provisions of law upon that subject; that he continued said work by himself and his sworn deputies up to and including the 24th day of September, 1889; that the work so done, and caused to be done, is of the value of $ 277.50; that the appellee is, and was on the 24th day of September, 1889, the auditor of said county; that on said 24th day of September, 1889, relator made out an itemized statement of said work, so done by him upon said ditches, and, after being sworn thereto, presented and filed the same with the appellee as such auditor, and demanded of him a warrant upon the treasurer of said county for said sum of $ 277.50; but that appellee wholly refused, and still refuses to issue to the relator a warrant for said sum; that said sum is due from said Howard county, and remains wholly unpaid; that there was, and still is, money in the treasury of said county liable to, and sufficient to pay said indebtedness and claim in full. Prayer for a mandate, etc.
It is disclosed by the bill of particulars filed with the complaint, that of the claim demanded, $ 93 is for work done by the relator, and $ 184.50 is for work done by deputy.
The court sustained a demurrer to the complaint, and the relator failing to plead further the appellee had judgment for costs.
The assignment of error calls in question the correctness of the ruling of the circuit court in sustaining a demurrer to the above complaint.
By the first section of an act of the General Assembly of the State approved February 28th, 1889, Elliott's Supplement, section 1202, ditches constructed under the laws of the State are put under the control of the township trustees of the several townships in which they are situate. Section 1203 makes it the duty of the county surveyor of the county, in which any of such ditches or drains may be situate, to view and examine each and every such ditch or drain, within his county, and to fix and determine the portion thereof that the owner of each tract of land and each corporation, county or township, assessed for the construction thereof, should annually clean out and keep in repair; and at the same time, set apart and apportion to each parcel of land, a share or portion of such ditch or...
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