Waymire v. Powell

• Decision Date: 10 February 1886
• Citation: 105 Ind. 328,4 N.E. 886
• Parties: Waymire and others v. Powell and others.
• Court: Indiana Supreme Court

105 Ind. 328

4 N.E. 886

Waymire and others

v.Powell and others.

Supreme Court of Indiana.

Filed February 10, 1886.

Appeal from Jasper circuit court.

F. W. Babcock, for appellants.

S. P. Thompson, for appellees.

MITCHELL, J.

The learned counsel for appellants states the case made in this record substantially as follows: On the twentieth day of February, 1884, pursuant to proper preliminary notice and proceedings, the board of commissioners of Jasper county let contracts, separately, for furnishing all materials and constructing and completing the stone abutments and superstructure for a county bridge of the value of more than $4,000, over the Iroquois river. On the twenty-third day of May, 1884, the abutments having been completed according to contract, ready for the superstructure, and the board not being in session, the appellants Waymire and Nichols, being a majority of the board of commissioners, the other commissioner living remote from the county-seat, at the instance of the contractor and bridge superintendent, employed an engineer, with whom and the superintendent they measured and estimated the abutments, and, finding them completed according to contract, received them, and settled with the contractor subject to the ratification of the board in formal session. On the thirteenth day of June, 1884, the board being convened in special session, present John Waymire, Asa C. Prevo, and Samuel R. Nichols, it was “ordered that John Waymire have an allowance of three dollars and fifty cents for per diem as a commissioner of this board, for one day's services in inspecting, examining, and measuring the stone abutments for the new iron bridge over the Iroquois river at Rensellaer on the twenty-third day of May, 1884, and that the auditor draw his warrant on the county treasurer for such allowance.” A like order was made at the same time in favor of Samuel R. Nichols, another member of the board. John W. Powell, by a proper affidavit and appeal-bond filed in each case, perfected an appeal to the Jasper circuit court. The appeals having been perfected, the cases were consolidated in the circuit court. Waymire and Nichols moved to dismiss the appeal, and the overruling of their motion to dismiss presents the principal question for decision.

It is contended here that the services for which the allowances were made, were services voluntarily rendered, and that the allowances were therefore within the discretion of the board. The argument is (1) that allowances which a board of commissioners may make at their discretion, like other acts which are purely discretionary, are not reviewable on appeal; (2) that the allowances were for services voluntarily rendered, and, within the prohibition of section 5770, an appeal is forbidden.

The amount directly involved is inconsiderable, but the question is of importance. The proposition that any officer or officers charged with the control and expenditure of public funds have the power to make allowances to themselves out of such funds, either at discretion, or for services voluntarily rendered, without other restraint than their own sense of fairness, is well calculated to invite attention. The compensation of officers is, as a rule, prescribed by law, and it has often been declared by this court that, before any public officer may demand or receive compensation out of the public treasury for services performed by him, it is required that he show (1) that a specific compensation is allowed by law for the service for which remuneration is claimed. (2) that express authority exists for making payment out of the public funds. Noble v. Board, etc., 101 Ind. 127;Board, etc., v. Gresham, Id. 53; Board, etc., v. Harman, Id. 552, Bynum v. Board, etc., 100 Ind. 90;Wright v. Board, etc., 98 Ind. 88. In the case of Board, etc., v. Gresham, supra, this court said, in reference to the rule above stated:

“It is of the highest concern that this should be so; otherwise it would be within the power of one body of county officials to compensate the other county officers out of the public treasury, as a matter of grace and favor, without limit or restraint.”

If county commissioners cannot compensate other county officers for official services without express authority of law, it would seem necessarilyto follow that they cannot, without such authority, compensate themselves.

Section 5823, Rev. St. 1881, provides that “the county commissioners' fees shall be as follows: For each day's attendance as a member of the county board, or board of equalization, each commissioner shall receive three dollars and fifty cents.” The legislature having, in the foregoing statute, fixed the measure of compensation for the services of a county commissioner, it is not competent for county boards to supplement the legislation thus enacted by making allowances to themselves, either at their discretion or for services voluntarily performed. Section 5763 provides that “the boards of commissioners may make allowances at their discretion,” etc.; but, as was said in Rothrock v. Carr, 55 Ind. 334, this does “not mean an arbitrary, uncontrolled, unlimited discretion, contrary to law, or without any authority of law; for, where there is no law, there is no act to do, and therefore no discretion to be exercised.” The discretion, therefore, must be according and in subordination to the law, and not outside of and in violation of it. English v. Smock, 34 Ind. 115.

The order recites that the allowance was for “ per diem, as a commissioner of the board,” etc., but it also shows that it was not for “attendance as a member of the county board or board of equalization,” and it was therefore made without any authority of law. Where the board of commissioners, of their own motion, do an act which, under the law, they may do or not, as in the exercise of their discretion seems best, and the time and mode of doing the act is not prescribed by law, no appeal lies from their decision in such a case; but when they make an allowance which is illegal, and appears so on its face, any one aggrieved may appeal. There are many things which are left to the discretion of county boards, in which they...