Wood v. State ex rel. Seiler
| Decision Date | 11 May 1900 |
| Docket Number | 19,076 |
| Parties | Wood, Treasurer, v. The State, ex rel. Seiler, Treasurer |
| Court | Indiana Supreme Court |
Rehearing Denied June 5, 1900.
From the St. Joseph Circuit Court.
Reversed.
C. W Miller, J. S. Drake, L. W. Vail and E. A. Dausman, for appellant.
J. M Van Fleet and V. W. Van Fleet, for appellee.
Cyrus Seiler, as treasurer of the school city of Elkhart, on the 4th day of October, 1898, filed in the Elkhart Circuit Court his verified petition and motion for an alternative writ of mandate directed against Delos N. Weaver as treasurer of Elkhart county to compel the latter to pay to the former the sum of $ 5,900 alleged to be the unpaid balance of three certain orders drawn by the auditor of Elkhart county on the 2nd day of June, 1897, in favor of a former treasurer of said school city, for money due said school city. The case was sent on change of venue to the St. Joseph Circuit Court. The official term of Weaver, as treasurer of Elkhart county, expired December 31, 1898, and appellant, Wood, succeeded to the office January 1, 1899. Wood was thereupon substituted, in his official capacity, as the sole defendant. Wood's demurrer to the complaint and alternative writ was overruled. He then, for return to the alternative writ, answered in two paragraphs. To the first paragraph of answer appellee's demurrer was overruled, and to the second paragraph sustained. Reply to first paragraph of answer, trial by jury, verdict for appellee for $ 6,133, and judgment for the issuance of a peremptory writ of mandate.
Error is assigned upon the action of the court in overruling appellant's demurrer to the complaint and alternative writ, and in sustaining appellee's demurrer to the second paragraph of answer, and in overruling appellant's motion for a new trial. Appellee assigns as cross-error the overruling of the demurrer to the first paragraph of answer.
The complaint and alternative writ in substance allege that, in May, 1897, the auditor of Elkhart county made and entered of record in his office a distribution of money then in the county treasury due to the school city of Elkhart; that the distribution as made was correct, and distributed to said school city the sum of $ 15,194.67; that, on the 2nd day of June, 1897, said auditor issued his certain three orders upon the treasurer of Elkhart county for the said sum of $ 15,194.67, payable to Finn, then the treasurer of the school city of Elkhart, copies of which orders are set forth; that Finn at once delivered the orders to Holderman, the then treasurer of the county; that Holderman paid Finn on the orders $ 9,294.67, and no more, leaving the sum of $ 5,900 unpaid, and which is still unpaid; that Holderman, at the time, stamped on the face of each order: ; that the relator, having been previously elected and qualified as treasurer of the school city of Elkhart, on the 4th day of October, 1898, and before the commencement of this suit, presented to the defendant, Weaver, as the then treasurer of the county, the said three orders so issued to Finn, and demanded thereon the payment of $ 5,900, which the defendant, Weaver, refused to pay; that, at the time said orders were issued, there was, and still is, in the treasury of said county money liable for the payment of said claim sufficient to satisfy the same in full. Prayer for an alternative writ commanding the defendant to pay the $ 5,900, or show cause, and, upon failure to show good cause, that a peremptory writ issue.
The right to mandamus is ably and earnestly contested, the contention being that the complaint does not disclose such a clear and certain right to receive, on the one hand, or such plain and manifest duty to pay the sum demanded, on the other, as will warrant the issuance of the peremptory writ; that the indorsement of the orders as paid by a former treasurer, as required by § 7998 Burns 1894, presented such grave doubt of a balance remaining unpaid as to justify a refusal to pay the demand until determined by some proper tribunal.
Mandamus is generally a proper remedy against a ministerial officer to require the performance of an act connected with the liability of the government, when there is no other adequate legal remedy, the demand definitely fixed, the government itself clearly liable, and the officer refuses to act. Ingerman v. State, 128 Ind. 225, 27 N.E. 499; State v. Snodgrass, ex rel., 98 Ind. 546; Henderson v. State, ex rel., 53 Ind. 60; Hamilton v. State, ex rel., 3 Ind. 452, 457; Burnsville Turnpike Co. v. State, 119 Ind. 382, 384, 20 N.E. 421; Rice v. State, ex rel., 95 Ind. 33; State, ex rel. v. Cooprider, 96 Ind. 279; High, Ex. Leg. Rem. (3d ed.) §§ 100-117; Moses on Mand. p. 135.
It is the right exhibited, as contradistinguished from the evidence in support of it, that must be clear and certain. It will not do to say, as seems to be contended, that the right must be held in abeyance until the facts essential to its support have been first established before some proper officer or tribunal. The right may exist independently of the ability to prove it, and, when the relator exhibits a state of facts that entitles him to the alternative writ, if true, it is the duty of the court to award it; and, upon the return thereto, "issues of law and fact may be joined; and like proceedings shall be had for the trial of issues and rendering judgment as in civil actions." §§ 1185, 1186 Burns 1894, §§ 1171, 1172 R. S. 1881 and Horner 1897.
At common law, the return to the alternative writ was conclusive as to the facts in that proceeding, and the sole remedy of the petitioner was to sue the defendant for a false return; but the right to traverse the return, form and try issues of fact, in all cases, is clearly contemplated by the statute, supra, and there can be no other purpose or end accomplished by the trial of issues than the judicial determination thereby whether a peremptory writ should issue in the particular case.
To entitle him to the writ, the relator was required to show: (1) That he had an interest in the subject-matter; (2) that the orders in controversy were in part unpaid; (3) that the amount unpaid was fixed and certain; (4) that there was sufficient money in the treasury liable to the payment, and (5) a prior demand and refusal of the defendant to pay. If these things were well pleaded, they constitute a prima facie case which is sufficient to withstand a demurrer for want of facts. Board, etc., v. State, ex rel., 61 Ind. 379, 386.
It is insisted that mandamus will not lie to enforce a stale claim, and that the complaint is bad for showing a lapse of sixteen months after the action accrued before any step was taken by appellee to enforce it. As a rule, the question of laches, which falls short of the period of limitation for such actions, in the absence of averments showing that the present assertion of the right will in some way injure the defendant, can not be raised by demurrer. It is true, when it appears either from the complaint or answer that the plaintiff has slept upon his rights for an unreasonable time, relief by mandate, as a general rule, will be refused; but the mere delay for the time mentioned can not be considered as unreasonable, or laches of such a character as will alone defeat the action.
It is insisted that the complaint is bad for the further reason that appellee had an adequate remedy at law in a suit against the county. We do not think so. The basis of such right, or the form of the action, has not been pointed out, and we are unable to perceive any. The county, as such, has no beneficial interest in, or control over, the fund against which the orders were drawn. It occupies no fiduciary relation thereto. It is charged with no duty in respect to its disbursement or security. The money was placed by the State in the hands of the county treasurer under § 5970 Burns 1894, and distributed to the school city of Elkhart by the county auditor under § 5973 Burns 1894.
The county treasurer, in the receipt and disbursement of this fund, was exercising a State function, and in no sense was he such an agent of the county as will make the latter responsible for his acts. As was said in Vigo Township v. Board, etc., 111 Ind. 170, at page 173, 12 N.E. 305:
The case of Shelby Township v. Randles, 57 Ind. 390, should not be construed as holding a contrary doctrine. In that case the township was held liable to a suit for damages by the owner of sheep killed by dogs. The fund applicable to the payment of such claims was created by the taxation of dogs in the particular township, under the act of 1865, chapter twelve, and was paid over and belonged exclusively to the township (section three), and if not all required to pay such claims, the surplus was disbursed by the township as school revenue (section four). The fund was created by and belonged to the township for a particular purpose, and it was its duty, enjoined by law, to disburse it through its trustee in the execution of that purpose, and, upon its refusal so to do, was liable to the party aggrieved.
It is quite true that a county may sue and be sued in...
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