The Board of Commissioners of Tippecanoe County v. Barnes

• Decision Date: 24 April 1890
• Docket Number: 14,107
• Citation: 24 N.E. 137,123 Ind. 403
• Parties: The Board of Commissioners of Tippecanoe County v. Barnes
• Court: Indiana Supreme Court

24 N.E. 137

123 Ind. 403

The Board of Commissioners of Tippecanoe County v. Barnes

No. 14,107

Supreme Court of Indiana

April 24, 1890

From the Carroll Circuit Court.

Judgment reversed.

W. D Wallace, S. P. Baird, F. S. Chase, J. B. Milner and C. E Lake, for appellant.

J. R Coffroth and T. A. Stuart, for appellee.

OPINION

Elliott, J.

At a regular session of the board of commissioners of Tippecanoe county, held on the 12th day of September, 1885, the following order was made and entered of record:

"Whereas, an indispensable public necessity exists during the construction of free gravel roads in Tippecanoe county, whereby the auditor is compelled to perform a large amount of extra labor, for which no compensation is allowed by law; and whereas, the board being satisfied that such indispensable public necessity exists, and that the fees now being charged by the auditor for such extra work are reasonable and just, it is now ordered by the board that he be and he is hereby required to perform such work, and that he be and he is hereby authorized to make such charges for said work, and distribute the same as expenses to the various free gravel roads, as follows, to wit: Filing petitions, reports, etc., five cents each; indexing, ten cents; docketing, twenty-five cents; recording petitions, order of the board to viewers, etc., reviewers, etc., ten cents per one hundred words; filling up bonds and registering the same, twenty-five cents each; making tax duplicates and copy, one dollar per page each; indexing lands assessed for gravel road taxes on State and county duplicates, ten cents per index; making transfers of real estate, ten cents for each transfer; making settlements with county treasurer and keeping account with the road, the following fees shall be charged per road, to wit: John P. Kissinger, H. W. Stingley, Buddell Sleeper, John B. Shelby, Amos Welch, Earl & Smith, J. H. Marks, Jasper H. Stidham, John W. Heath, Samuel Allen, S. A. Cunningham, Adams Earl, and Lafayette and Concord Gravel Road, ten dollars each; D. C. Beaver, Central Gravel Road and the Randolph road, five dollars each; making delinquent list and preparing the same for the printer, and such other work connected with the same, ten cents per one hundred words. And for any and all roads that may be constructed other than above, the same fees shall be charged and collected."

On the 7th day of March, 1883, the board made and caused to be entered of record this order:

"Whereas, it is believed by the board that it will be for the safety and security of the county that all claims which are now filed, or shall hereafter be filed for allowances before the board of commissioners, shall be accompanied by an affidavit by the claimant or his agent. It is, therefore, ordered by the board that an indispensable necessity exists why such affidavits to such claims should be made. And it is, therefore, ordered that all claims that are filed, or shall hereafter be filed for allowance, shall be accompanied by an affidavit of the party, or his agent, that such claim is justly owing from Tippecanoe county, and that such claim, or any part of it, has never been allowed; and inasmuch as no fee is provided for the services that may be required of the auditor, in swearing affiants to such claims, it is ordered that hereafter, in all cases where the auditor shall swear parties to their claim, he shall be allowed the sum of ten cents for such affidavit."

Acting under these orders, the appellee, then holding the office of auditor of the county, rendered the services for which the orders provide, and claimed the compensation they designate. He presented his claim to the board of commissioners in due form, but that body refused to allow it; he then brought suit and obtained a judgment, and from that judgment the board of commissioners prosecutes this appeal.

If the board of commissioners had power to make the orders upon which the complaint is founded, the appellee's judgment should stand; if, however, the board had no power to make the orders, the judgment must fall. It is evident, therefore, that the question presented for decision is one of power, and not of expediency. If the board had power to make the orders, then, whether it acted prudently or discreetly is not a question for the courts, since it is settled beyond controversy that where a board of commissioners is invested with a discretionary power its judgments are not subject to review by the courts unless it transcends its authority.

The power to fix the fees of an elective county officer is not inherent in the board of county commissioners. The inherent powers of such a board are limited, for their principal powers are purely statutory. Incidental powers essential to the due exercise of principal ones it may have, but principal powers it can not have without a statutory grant. It is a body owing its principal powers entirely to the statute, and he who asserts that it possesses a power of an important and superior nature must make good his assertion by the production of a statute or the assertion will go for nothing. Gavin v. Board, etc., 104 Ind. 201, 3 N.E. 846; Miller v. Embree, 88 Ind. 133; Board, etc., v. Bradford, 72 Ind. 455; Hight v. Board, etc., 68 Ind. 575; Coman v. State, 4 Blackf. 241; Mountain v. Multnomah County, 16 Ore. 279, 18 P. 464; State, ex rel., v. Harris, 96 Mo. 29, 8 S.W. 794.

A board of county commissioners can not add to its power nor give effect to an unauthorized act by any declaration of its own. It can not make a question of power one of expediency by any assertion or recital. Cobwebs of that sort will be swept away by the courts, and the action of the tribunal so thoroughly examined and explored as to enable the courts to determine the true character of the act or transaction. What can not be accomplished directly can not be accomplished by indirection. Declarations will not be permitted to conceal or cover the proceedings, for the courts will strip off covers and ascertain the real nature of the transaction. We do not therefore, attach any importance to the recitals in the orders before us, but, putting...