State Workman v. Goldthait

• Decision Date: 16 February 1909
• Docket Number: 21,140
• Parties: The State of Indiana, ex rel. Workman et al., v. Goldthait, Auditor
• Court: Indiana Supreme Court

87 N.E. 133

172 Ind. 210

The State of Indiana, ex rel. Workman et al., v. Goldthait, Auditor

No. 21,140

Supreme Court of Indiana

February 16, 1909

Rehearing Denied April 22, 1909.

From Howard Superior Court; Joseph Claybaugh, Special Judge.

Action by The State of Indiana, on the relation of Joseph B. Workman and another, against Harry Goldthait, as auditor of Grant county. From a judgment for defendant, plaintiff appeals.

Affirmed.

John W Kern, G. A. Henry, C. C. Shirley, James E. Truesdale and Charles E. Thompson, for appellant.

Brownlee & Cline, for appellee.

OPINION

Myers, J.

Appellant 's relators instituted this action against appellee, auditor of Grant county, for a writ of mandate to compel the latter to issue to them a warrant upon the treasury of that county for $ 695, in payment of a claim which had been allowed to them by the board of commissioners of that county, under and pursuant to a contract of employment to search in Grant and other counties in Indiana, and in other states for, and report to the proper officers, omitted, unassessed taxable property. Appellee answered that relators, on May 3, 1905, entered into a written contract with the Board of Commissioners of the County of Grant, which was spread of record, whereby the latter, after entering upon its record that an indispensable public necessity existed for relators' employment, "authorized, directed and employed relators to make a careful and diligent search and investigation to discover omitted, unassessed taxable property, and to report the same to the proper officers of said county for assessment, taxation, and entry upon the tax duplicate;" that relators were to be "paid a sum of money equal to thirty-five per cent of all moneys collected by the county treasurer, as a result of their investigation," and that they should be paid by "said county treasurer, upon their filing with the board a statement duly verified showing the names of those assessed, the amount of property, the taxes thereon, and the amount collected by the county treasurer since said last report, and the amount owing to said Workman and Higgs, said per cent to be deducted from the gross amount so collected and paid to said Workman and Higgs, all in conformity with §§ 6016, 10271 Burns 1908, § 5766 R. S. 1881, Acts 1905, p. 15;" that on June 22, 1905, relators filed a verified itemized statement with the auditor of said county in the form of an account, showing the collection of $ 1,985.82, and claiming as due them thirty-five per cent of said amount, or $ 695; that an affidavit was attached, showing that the claim was made under contract; that on July 5, 1905, the board of commissioners made an order reciting the collection by the treasurer of $ 1,985.82, upon discovery and report and causing the same to be collected by relators under said contract, and entered an order allowing them $ 695, as per the claim filed, and directed the auditor to issue to them a warrant against said gross sum of omitted taxes so collected by the county treasurer, and the treasurer of Grant county was authorized and directed to pay said warrant out of the gross amount of omitted taxes then in the county treasury, said warrant to be issued and paid in the manner as such warrants are issued and paid to the state treasurer and township trustees, for moneys due to them from the collection of taxes; that the contract mentioned in the claim and in the finding, and the order of allowance and the contract mentioned in the amended complaint and the alternative writ, were one and the same contract; that the indebtedness mentioned in the amended complaint and alternative writ is the same indebtedness as in the claim set forth and allowed, and relators never filed any other claim; that the services rendered and claimed for were all rendered in Grant county, and consisted in making an examination of the tax duplicates of said county and other records and papers in the offices of auditor, treasurer, recorder, clerk, sheriff and surveyor of said county, and examining the returns of real and personal property made to the auditor by the assessors of the several townships, and the assessment lists, schedules, statements, maps and other books and papers filed with said auditor, and in furnishing to the county assessor the information obtained by said examination relative to omitted property; that more than $ 390 of the $ 695, for which appellants make claim, is for and on account of personal property omitted from the tax duplicate for the years 1893-1904, inclusive, and since the creation of the office of county assessor, and all the services rendered and charged for and allowed were the services before described, and none other than the county assessor was required to do and perform, and that, during all the time that relators were performing the things set forth, there was a duly elected, qualified and acting county assessor of the county, who in the discharge of his duties might have performed all the things done and services rendered by relators; "that at and before the making of the alleged contract * * * no appropriation was made by the county council of said Grant county, Indiana, nor has any appropriation been made by said county council at any time since the making of said contract, nor does any appropriation now exist for the payment of the services and things to be done and stipulated to be performed by the terms of said contract, or for the payment of any services of the kind or character described and set forth in the amended complaint, and in the alternative writ of mandate, nor for the payment of the claim filed and allowed as aforesaid, alleged to have been performed by the relators herein; that no appropriation now exists of any amount of money to pay for the services and indebtedness mentioned, * * * nor had any appropriation been made, nor did any exist at the time of the commencement of the action, nor at any time prior thereto or since, out of which the claim or any part of it could be paid, or against which defendant could draw a warrant demanded in the complaint and writ, or out of which said warrant could be paid by the treasurer."

A demurrer by relators to this answer for want of facts to constitute a defense was overruled. Relators refused to plead further, and judgment was rendered against them, and they appeal and assign error on such ruling. It is contended by relators that no appropriation by the county council was necessary to make the contract valid: (1) Because, being a percentage contract, no estimate of the expense of carrying it into effect could be made; (2) that, notwithstanding the county reform act (Acts 1899, p. 343, §§ 5594g-5594e2 Burns 1901), the contract was valid under the independent powers conferred by § 6016, supra; (3) that if the county reform act is in conflict with § 6016, supra, the reform act is unconstitutional, by reason of the qualifications imposed for eligibility to the office of county councilman; (4) as to that part of the answer which raises the question of relators' being employed to discharge the duties of the county assessor, the act, with respect to the duties and qualifications of county assessors, is unconstitutional, because of the qualifications imposed by the act as to the eligibility to that office; (5) that under the provisions of the act of 1905, supra, no appropriation is necessary to be made by the county council, for the reason that the statute itself makes the appropriation, in requiring to "be deducted from the gross amount of said taxes so collected the total cost and expense of such investigation and collection, and the remainder shall be distributed pro rata among all the funds entitled to receive the same;" (6) that equity will interpose to charge a fund with the expense of acquiring or preserving it.

As to the first proposition we see no more difficulty with respect to making appropriations for carrying percentage contracts into effect than in any other class of contracts which may arise. This act, like any other, must receive a reasonable and practicable construction, in view of the purposes of its enactment. It is not contemplated that an appropriation shall be made which shall be the exact amount needed in any department; that is impracticable. The statute requires only an estimate or approximation of the amount of money required for any branch of the county government. § 5933 Burns 1908, Acts 1899, p. 343, § 16.

In practical administration we know this must be so. Unusual conditions or circumstances must be taken into account. For example, unprecedented floods which may sweep away bridges or destroy highways, fire which may destroy a courthouse, or the buildings of county institutions, may call for a large expenditure of money which could not be expected or form any basis for an estimate of the expenses of maintaining the highways or the institutions, so that the estimate, particular though it may be, must be made in the light of the best judgment as applied to ordinary circumstances or conditions. To extraordinary conditions another section applies. § 5938 Burns 1908, Acts 1907, p. 332, § 2. So with respect to such contracts as the one before us, there is nothing impracticable in requiring an estimate and appropriation, any more so than in most, if not all, other instances where an estimate and appropriation are required.

As to the second proposition we think the learned counsel for relators are in error. There is no repugnancy between § 6016, supra, and the reform act (Acts 1899 supra). They may be considered together and taken as parts of one system, and we think they must be taken to supplement each other. It must be borne in mind that the office of county commissioner is not a constitutional office, and never...