State ex rel. The Board of Comm'rs of Daviess County v. Clark

• Decision Date: 28 November 1853
• Parties: The State on the relation of the Board of Commissioners of Daviess County v. Clark and Others
• Court: Indiana Supreme Court

4 Ind. 315

The State on the relation of the Board of Commissioners of Daviess County

v.

Clark and Others

Supreme Court of Indiana

November 28, 1853

ERROR to the Daviess Circuit Court.

The judgment is reversed with costs. Cause remanded.

S Judah, for the state.

OPINION

Stuart J.

The State, on the relation of the Board of Commissioners of Daviess County, sued Clark and others, on their writing obligatory as borrowers of the surplus revenue fund. The history of that fund,--its distribution, in 1836, among the states, and by this state to the counties to be loaned out on interest, need not be detailed.

General demurrer to the declaration sustained.

The only question discussed by counsel is whether the board of commissioners be the proper relator; or whether the suit should have been brought on the relation of the county treasurer.

The case of The State v. Votaw and others, 8 Blackf. 2, is referred to in argument. That was a suit on the relation of the treasurer of one county against the treasurer of another county about the surplus revenue fund. The county of Blackford had been carved out of the county of Jay, and was claiming her share of the surplus revenue from the latter county. This Court, on objection to the relator, decided that the suit was correctly brought on the relation of the treasurer of Blackford county. The reason given is, that, under the law, the treasurer has a possessory right to this fund, and a beneficial interest in it to the extent of his commissions.

The language of the Court, that "the state holds the fund as a depository," is objected to as incorrect. It is contended that the bailment, if any, is not a deposit but a debt. There is, however, a distinction in deposits. Where the very silver or gold deposited is to be restored, the transaction is a special or pure deposit. But where the party is to restore, not the identical coin, but only an equivalent, on demand, the books call it a loan or mutuum or irregular deposit. Story Bailm. ss. 47, 88.-- Coffin v. Anderson, 4 Blackf. 395. To this latter class the distribution of the surplus revenue seems to belong. Thus, whether regarded as a special or irregular deposit, the language of the Court in the case alluded to is equally applicable. For the purposes of that decision, further distinction was not necessary.

But in The State v. Votaw, supra, the Court intimate that the board of commissioners is not the proper relator. This position counsel in the case at bar also controvert.

It may well be doubted whether in these surplus revenue bonds any relator is necessary. The contract is directly with the state. The practice has been, in some circuits, to bring the suit in the name of the state simply, thus leaving it to the sheriff to determine who was entitled to receive the money at his hands when collected. One of the objects of a relator would be to direct the officer to whom he was to pay; and the costs might also be matter of consideration. A responsible relator might, therefore, be proper.

In the case at bar, the board of commissioners is the relator. It is a body corporate, capable of suing and being sued. R. S 1843, p. 181. In legal contemplation, the board of commissioners is the county. It has the care of the property of the county, as well as its supervision and management. Id. 183, s. 14. The county is liable for the...