The Board of Commissioners of Perry County v. Gardner

• Decision Date: 26 June 1900
• Docket Number: 19,129
• Citation: 57 N.E. 908,155 Ind. 165
• Parties: The Board of Commissioners of Perry County et al. v. Gardner
• Court: Indiana Supreme Court

57 N.E. 908

155 Ind. 165

The Board of Commissioners of Perry County et al. v. Gardner

No. 19,129

Supreme Court of Indiana

June 26, 1900

From the Perry Circuit Court.

Reversed.

Esarey & Ewing, W. A. Land, C. A. Weathers and H. A. Lee, for appellants.

B. K Elliott, W. F. Elliott, F. L. Littleton, T. W. Lindsey, P Zoercher, E. C. Henning and William Henning, for appellee.

OPINION

Dowling, J.

The board of commissioners of Perry county, in this State, entered into a contract with one Grimes, whereby the latter, in consideration of $ 3,300, to be paid to him by said board, agreed to make an investigation of the books, papers, and records of the offices of the auditor and treasurer of said county, for the period between December 1, 1866, and December 1, 1898, and to return to said board a report of such examination, showing the condition of said offices, and whether there was any money due to said county from any source. It was stipulated that one Knight, the then deputy treasurer of said county, should be employed by Grimes to assist him, but that Knight should be paid by Grimes.

This suit was brought by the appellee, Gardner, a taxpayer of said county, to enjoin the board and the auditor from paying out any part of said consideration, or issuing warrants therefor, Grimes and Knight being joined as defendants. Separate demurrers were filed to the complaint by the defendants below, and to each of the several specifications thereof. These demurrers were overruled. The defendants answered separately, and demurrers to the third and fifth paragraphs of each answer were sustained. The general denial filed by the board and by the defendant, Grimes, being withdrawn, and these parties refusing to plead further, and the auditor and Knight failing to appear, the court rendered judgment on the demurrers to the answers of the board and Grimes, and decreed a perpetual injunction as prayed for in the complaint. The board and Grimes appealed, but the board subsequently dismissed its appeal. The errors assigned are the rulings on the several demurrers.

The complaint consisted of a single paragraph, but stated six separate grounds as the basis of the relief asked for. These several grounds were numbered, and were referred to by both parties as specifications. In addition to a demurrer to the complaint as a whole, a demurrer to each specification was filed.

The first three grounds for the injunction, stated in the complaint, relate to a contract alleged to have been made between the board and Grimes at a time when the board was not legally in session. The sufficiency of these grounds is admitted by the appellant, Grimes, but this is unimportant, for the reason that the remaining specifications of facts admit the execution of another contract in pursuance of an order subsequently made when the board was in session and was engaged in the discharge of its administrative duties.

The facts relied upon by the appellee, and which constituted the ground of the judgment were: (1) That Knight, who was to be employed by Grimes to assist him in his labors, was, at the time of the execution of the contract, the acting deputy treasurer of said county; that he had been such deputy treasurer for eleven years of the period included in the proposed investigation, and that he was interested in its result; (2) that the investigation for any part of the period previous to the last six years was useless, because all claims upon the official bonds of officers, to recover moneys embezzled, wrongfully collected or retained by them, or for which they might otherwise have been liable, were barred by the statute of limitations; that as to the twenty years prior to 1892, and as to the twenty years prior to 1887, the investigation would be useless, because experts had already been employed by the Attorney-General and the board, respectively, to examine, audit, and correct the books and records in the offices of the auditor and treasurer; and that the proposed allowance was unreasonable in amount because other experts could be employed who would do the same work for $ 1,200; (3) that the county was already indebted beyond the constitutional limit of two per centum of the value of the taxable property within its boundaries, the indebtedness incurred under the contract being, therefore, forbidden by law.

The proposition that the contract was void because it contemplated that Knight, the deputy treasurer, should assist Grimes is untenable. His employment as an assistant expert accountant was in no way incompatible with his duties as deputy treasurer. Neither was it objectionable on grounds of public policy. His familiarity with the books and records of the county, and with the methods of transacting the county business, may have rendered his assistance especially valuable and desirable. It is not alleged that he was in any way implicated in any fraud upon the county, or that he had been guilty of, or was privy to, any official irregularity.

Again, the fact that former examinations of the books and records had been made by other experts, and that the accounts so investigated had been audited and corrected, was no reason why a further examination should not be made. In the opinion of the board, the former investigations might have been collusive, or imperfect, or unsatisfactory. Certainly they were not conclusive upon the board.

The charge that the contract price for the labor to be performed by the expert was unreasonable, and more than other competent persons would have asked, is not a sufficient ground for an injunction. The board had a discretion in the selection of an expert,...