Zuelly v. Casper
| Decision Date | 24 April 1903 |
| Docket Number | 19,732 |
| Citation | 67 N.E. 103,160 Ind. 455 |
| Parties | Zuelly et al. v. Casper et al |
| Court | Indiana Supreme Court |
From Perry Circuit Court; E. M. Swan, Judge.
Suit by Adolph Zuelly and others against Martin F. Casper and others. From a judgment for defendants on demurrer to complaint plaintiffs appeal. Transferred from Appellate Court, under § 1337u Burns 1901.
Reversed.
S. H Esarey, for appellants.
J. L Suddarth, W. T. Zenor, M. D. Casper and Philip Zoercher, for appellees.
Dowling, J. Jordan, J., did not participate in this decision.
The appellants, Adolph Zuelly, Henry H. Bielefeld, and Frederick B. Wichser, describing themselves as residents and taxpayers of the county of Perry, in the State of Indiana, brought this suit against the appellee Casper and the board of commissioners of said county to recover, for the use of the county, some $ 3,985 charged to have been wrongfully allowed by the said board and unlawfully paid to the appellee Casper, who was the auditor of said county, in excess of the salary, fees, and compensation to which he was entitled under the statute.
The rulings of the court sustaining demurrers to the complaint for the insufficiency of the facts stated, for want of capacity of the plaintiffs to sue, and for a defect of parties plaintiff, are the errors assigned.
The allegations of the capacity in which the plaintiffs sue, and their interest in the subject-matter of the action are followed by the averments that Casper was elected auditor of Perry county at the general election held in November, 1890, and that he duly qualified and entered upon and discharged the duties of the office for the term of four years from and after December 1, 1890; that at the general election held in November, 1894, he was reelected to said office for the term of four years from December 1, 1894, and that he was duly qualified and entered upon and discharged the duties of said office for said term; that during each of said terms the said Casper received the full amount of the fees and salaries allowed him by law as such auditor; that, under color of his said office of auditor, the appellee Casper, in addition to his lawful fees and salary, taxed and charged against said county divers illegal fees and claims which are itemized and particularly set out, amounting in the aggregate to $ 3,985; that the said fees and claims were allowed by said board of commissioners, and that said Casper, as such auditor, was by said board authorized to draw his warrants upon the county treasurer for the sum so allowed; that said sums were drawn by and paid to said Casper, who still retains the same, although said moneys were demanded from him by the said board; that more than thirty days before the commencement of this suit the appellants requested said board of commissioners to bring an action against the said Casper for the recovery of the moneys so received by him, but that said board refused, and still refuses, to do so. The complaint further avers that the suit is brought for the benefit of the county of Perry, and that the board of commissioners of said county is made a defendant to answer as to its interest in said cause.
The objection to the complaint is thus stated in the brief of counsel for appellees: "The appellees insist that under the law of the State of Indiana, and under the facts as disclosed by the pleading in this case, the board of commissioners of Perry county, Indiana, alone, could bring this action against Martin F. Casper as auditor of said county, and that the appellants have no legal right to bring the suit as it was brought in this case." It is further contended in argument that the appellants can not maintain the suit because it does not appear that they have suffered a special injury different from that sustained by the general public in the violation of a duty owing to them as individuals.
The complaint charges and the demurrer admits that the appellee Casper, as auditor, wrongfully received a very large amount of the public revenues of the county, and that he refused to repay this money to the county, to which it rightfully belonged. It also appears, and is admitted by the demurrer, that the board of commissioners of the county refuses to bring suit to recover the moneys so wrongfully withheld. If the appellees are correct, the unfortunate county, by reason of the dishonesty of its officers, is utterly helpless, and nothing can be done by it or by its taxpayers to redress the wrongs to which for eight years it was systematically subjected. If this is the law, the situation is certainly one to be deplored.
Each of the counties of this State is an involuntary subdivision of the State, and a corporation for governmental purposes. Its corporate name is the Board of Commissioners of the County of -----, and such board is the legal representative of the county, having the general management and control of its property and affairs. In most cases, where money is due or owing to the county, it is the duty of the board of commissioners to compel its payment, by suit if necessary, and to take all proper steps to protect the rights and interests of the county. But the inhabitants, not the board, constitute the county; and if their interests are neglected or betrayed by the officers charged with the duty of protecting them, all or any of the inhabitants and taxpayers who are injuriously affected by the malfeasance or nonfeasance of the board may in many cases bring an action to prevent a threatened wrong, or to obtain redress for an injury already inflicted upon the county. Nothing is more certain than that the board of commissioners can make no disposition of the public funds except such as is expressly authorized by law. It is equally true that a public officer can receive only such fees, salary, or compensation as is expressly given him by statute. The board can no more make donations of the public revenues to a county officer than it can bestow such favors on private individuals. Taxation is the source of revenue, and the moneys collected by that means can not be applied to any purpose not authorized by law.
The objection urged against the right of a taxpayer to maintain a suit on behalf of the public has been presented in many cases in this court in which the relief sought was an injunction against the unauthorized application of the revenues of the county. Such right has uniformly been upheld. In Harney v. Indianapolis, etc., R. Co., 32 Ind. 244, 247, the court, by Frazer, C. J., said: ." The following authorities are to the same effect: Board, etc., v. Markle, 46 Ind. 96; Deweese v. Hutton, 144 Ind. 114, 43 N.E. 13; Town of Winamac v. Huddleston, 132 Ind. 217, 31 N.E. 561; Alexander v. Johnson, 144 Ind. 82, 41 N.E. 811; Nill v. Jenkinson, 15 Ind. 425; Dillon, Mun. Corp. (4th ed.), §§ 917, 922. So too, it has been held by this court that a citizen and taxpayer has such an interest in the subject as entitles him to examine the records and files of the county auditor's office, under reasonable regulations, and that such right may be enforced by mandamus. State, ex rel., v. King, 154 Ind. 621, 57 N.E. 535.
The reasons given by the court in support of the right of a taxpayer to maintain an action to enjoin an unlawful disposition of public funds apply with equal force where the wrong has been accomplished, the fund dissipated, and the public officers, whose duty it is to sue for and recover the money, obstinately or corruptly refuse to act. In the case of private corporations, it has often been decided that suit may be brought by a...
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