The State v. Trueblood

• Decision Date: 20 June 1900
• Docket Number: 3,178
• Citation: 57 N.E. 975,25 Ind.App. 437
• Parties: THE STATE v. TRUEBLOOD ET AL
• Court: Indiana Appellate Court

57 N.E. 975

25 Ind.App. 437

THE STATE v. TRUEBLOOD ET AL

No. 3,178

Court of Appeals of Indiana

June 20, 1900

Rehearing denied November 1, 1900.

From the Lawrence Circuit Court.

Affirmed.

W. L Taylor, Attorney-General, Merrill Moores, C. C. Hadley, J. A Zaring, McHenry Owen and S. B. Lowe, for State.

J. C. Lawler and M. B. Hottel, for appellees.

COMSTOCK, J. Wiley, J., dissents.

OPINION

COMSTOCK, J.

The indictment in this cause is in two counts. We are informed by counsel for the State that the first count is based upon § 7853 Burns 1894, § 5766 Horner 1897. The second count is based upon § 2105 Burns 1894, § 2018 Horner 1897. From the action of the trial court in quashing the indictment, the State appeals.

For convenience, we set out, omitting the formal parts, the first count: "On the 27th day of November, 1897, at the county of Lawrence and State of Indiana, Henry C. Trueblood, Matthew Robertson, and John W. Cosner then and there constituted and were members of the board of county commissioners of said county of Lawrence, in the State of Indiana, duly elected, qualified, and acting, and as such did then and there each unlawfully and wrongfully favor, vote for, and urge, procure, and induce each other to vote for and favor a certain allowance unto John B. Malott, who was then and there the duly elected, qualified, and acting auditor of said Lawrence county, there being then and there no indispensable public necessity for such allowance and no such necessity being found and entered of record by said board of county commissioners as part of its orders in making its orders in making such allowance, and there being no necessity whatever for such allowance, and said allowance not being specifically or otherwise required by law, but being illegal and wholly unwarranted by law, which said allowance was then and there unlawfully made by said board of commissioners in the sum of $ 500 for certain pretended services, which services the said John B. Malott then and there claimed to have rendered to the said county of Lawrence in the performance of certain duties, that is to say, extra work on account of gravel roads as clerk of board for thirty-two months at $ 25 per month, $ 800, which said claim was then and there by said board of county commissioners reduced to the sum of $ 500, which said sum of $ 500 was then and there by said board of commissioners, each member thereof as aforesaid unlawfully favoring the same, unlawfully and wrongfully allowed on said claim to said John B. Malott, who was then and there auditor of Lawrence county. That the duties performed by said Malott for which said claim was filed, pretended, and allowed were and are duties which said auditor was and is legally required to perform as a part of the duties of said office without extra pay, and said allowance was wholly unnecessary and unlawful. Contrary," etc.

The second count charges the same facts as to the filing and allowance of the same claim, and charges the failure to perform a certain duty in the manner and within the time prescribed by law, as provided by section 2105, supra.

This court, in the recent case of State v. Trueblood, 23 Ind.App. 31, 54 N.E. 822, in which the same question presented by the second count of the indictment before us was involved, held that the acts charged did not constitute any offense under the section named. To that decision we still adhere.

It only remains, therefore, to consider the sufficiency of the first count. Section 7853, supra, reads as follows: "The board of county commissioners shall, unless in cases of indispensable public necessity, to be found and entered of record as part of its orders, make no allowance not specifically required by law to any county auditor, clerk, sheriff, assessor or treasurer, either directly or indirectly, or to any clerk, deputy, bailiff or any employe of such officer; nor shall they, except in cases above provided, employ any person to perform any duty required by law of any officer, or for any duty to be paid by commission or percentage. For a violation of these provisions, each member of such board favoring the same shall be guilty of a misdemeanor, and, on conviction, shall be fined in any sum not less than double nor more than five times the amount of such allowance, to which may be added imprisonment in the county jail for any period not more than sixty days, and the office of such commissioner shall be declared forfeited. If it be found necessary, and so entered of record, to employ any person to render any service as contemplated in this section, as a public necessity, the contract for such employment shall be spread of record in said court; and, for such services rendered, the claimant shall file his account in said court ten days before the beginning of the term, and any taxpayer shall have the right to contest the claim." This section of the statute makes it a public offense for the board of county commissioners, acting as such board, unless in a case of indispensable public necessity, which fact is to be found and entered of record as part of its orders, to make any allowance not specifically required by law to either of certain officers named therein.

The general rule is recognized that material matters in either civil or criminal pleadings must be directly alleged, and not stated by way of recital. Jackson School Tp. v. Farlow, 75 Ind. 118; Shafer v. Bear, etc., Co., 4 Cal. 294; Hall v. Williams, 13 Minn. 260; Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 116 Ind. 578, 19 N.E. 440.

It will be observed from the reading of the indictment that the allegation as to the necessity for the allowance and as to its specific requirements by law are by recital, and not direct averment. The words "illegal" and "unwarranted" are conclusions of law, and do not describe the offense attempted to be charged. This count does not charge that the allowance was made out of the moneys of the county of Lawrence. The date at which the services were claimed to have been rendered is not stated. Its averments are not sufficient to bar another prosecution for the same offense. It does not appear, except by inference, that the party named as auditor, at the time the claim was filed and allowed, was auditor at the time the services were rendered, for which compensation was claimed. This date is material, for under the law in force until March 11, 1895, the board of county commissioners were authorized to employ and pay a clerk to record the proceedings of the board in a book provided for such purpose. § 7831 Burns 1894, § 5746 Horner 1897. It is a principle of criminal pleading that an indictment upon a statute must state the facts which constitute the definition of the offense in the act so as to bring the defendant within it. The indictment before us may be true and the defendant not guilty of the offense described in the statute.

The court did not err in sustaining the motion to quash.

Judgment affirmed. Wiley, J., dissents.

DISSENT BY: WILEY

WILEY J.--

I concur with my associates in holding that the second count of the indictment is bad, but am not in accord either with the reasoning or the conclusion reached in the prevailing opinion holding that the court correctly sustained the motion to quash as to the first count.

In determining the sufficiency of the first count there are two sections of the statute which may properly be considered, viz., §§ 7853, 6548 Burns 1894. The former section is quoted in the prevailing opinion, and need not here be repeated. The latter section is as follows: "It shall be unlawful for any board of commissioners to allow any county, township or other public officer, any sum of money out of a county treasury, except when the statutes confer the clear and unequivocal authority to do so." Section 7853, supra, prohibits the board of commissioners from making any allowance to any county auditor, etc., which such allowance is not specifically required by law, unless in case of indispensable public necessity to be found and entered of record as a part of its order. This section also provides a penalty for the violation of its provisions. Section 6548, supra, makes it unlawful for a board of commissioners to allow any county, township, or other public officer any sum of money out of the county treasury except when the statutes confer the "clear and unequivocal authority to do so." This section makes such allowance of money unlawful, but does not prescribe a penalty.

The first question to be determined is, was the claim of the county auditor, which was filed by him and allowed by the board, and which is described in the first count of the indictment, an unlawful or unwarranted claim? If the auditor was not entitled to the compensation specified in the claim filed, and as allowed, then it was an illegal claim against the county; there was no liability on the part of the county, and its allowance by the board was unlawful, within the meaning of the statute. I am informed by the indictment that the basis of the claim of the auditor was for extra services claimed to have been rendered by him on account of gravel roads, as clerk of the board for thirty-two months, at $ 25 per month. By the act of 1891, the compensation of county officers in this State was graded and fixed. It is plain that it was the intention of the legislature by said act to regulate, adjust, and fix such compensation, to the end that constructive fees should neither be charged nor paid. The law, as then passed, became a public necessity to correct well known abuses that had grown up under our former laws, and that the public might be protected against unjust and unwarranted claims of public officers. By the act of 1891, the salary of the auditor of Lawrence...