153 Ind. 682 | Ind. | 1899
Appellee commenced this action on the 8th day of September, 1897, to secure a judgment in the lower court declaring null and v.oid a certain contract entered into between the hoard of commissioners of the county of Wayne and appellant, Mayberry M. Tracey, and perpetually enjoining said hoard, together with the county auditor and county treasurer, from ordering the payment of any money, or from drawing a warrant upon the county treasury, and from paying any money therefrom to said Lacey for services rendered by him under said contract; and also perpetually enjoining Lacey from receiving any order or warrant from either the hoard of commissioners or the county auditor, or from receiving any money whatever from the county treasurer in payment of his services already 'rendered and thereafter to he rendered under or pursuant to such contract. The complaint discloses that the plaintiff is a taxpayer
In pursuance of and under this order, on the same day, the board entered into a written contract or agreement with appellant, Lacey, which contract was spread of record immediately following the above order. By the terms of this contract said board employed him to make a careful and diligent search in counties other than Wayne in this and other states to discover “omitted, concealed, and.unassessed taxable property” liable to taxation in Wayne county, Indiana. Appellant Lacey,- under this contract, agreed upon his part to make a careful and diligent search for such property and honestly and impartially to report the same to the auditor or assessor of Wayne county for assessment and entry on the tax duplicate of that county. It was further stipulated in the contract that Lacey was to receive and be paid for his said services a compensation equal to twenty-five per cent, of the amount of taxes collected upon such omitted property, discovered and reported by him and collected through his efforts. Nothing, however, was to be due or payable to him as a compensation for his services until the taxes on the property discovered and reported by him had been collected and paid into the county treasury; and he was to bear’ all expenses incurred in discovering such property and placing the same on the tax duplicate.
It appears from the complaint that before the commencement of this action, appellee, Lacey, had rendered services under the contract in question by discovering and reporting the same to the proper authorities of Wayne county, a large
The prayer of the complaint is that the court adjudge the contract void and that an injunction be awarded the plaintiff, perpetually enjoining the defendants from paying the appellee, Lacey, any money whatever claimed to be due him under said contract, etc. The complaint was held sufficient over the separate demurrers of each of the defendants, and judgment, as heretofore mentioned, was rendered upon demurrer. The sufficiency of the complaint is the only question presented for our consideration. The pleading seems to be based on or proceeds upon the theory that the order of the board of commissioners, and the contract in question thereunder, are void for the reason that each is beyond either the express or implied powers of said board.
It is insisted by counsel for apppellee that in the administration of county affairs, the board of commissioners has no power to employ persons to search within or without the county for omitted taxable property and report the same, if discovered, to the proper authorities for taxation, for the reason, as urged, that the law has cast the duty of discovering and assessing such property, if liable to taxation, upon certain designated county officials other than the county commissioners. Aside from the question as to (he right or power of the board to bind the county under this contract, counsel for appellants contend that, under the facts set out in the complaint, the plaintiff is not shown to be entitled to any equitable relief. The board of commissioners of Wayne county, in making the order and in employing appellant, under the contract executed in pursuance thereof, wa3 acting, or at least assuming to act, under the provisions of §5766 R. S. 1881 and Horner 1897, §7853 Burns 1894.
It appears that the contract in dispute had been executed by and between the board of commissioners and the appellant almost five months prior to the time that appellee instituted this action, and appellant had rendered services thereunder, for which he was claiming that the money, the payment of which appellee in this action seeks to enjoin, was due and owing to him from Wayne county. The statute above set out, as it will be seen, expressly requires a claimant, for services rendered by contract thereunder with the board of commissioners, to file his account for allowance in the commissioners’ court ten days before the beginning of the term; and any taxpayer of the county is expressly given the
By the statute in question, appellee is certainly furnished a plain, specific, and adequate legal remedy by which he may challenge the power or right of the board of commissioners to employ appellant to render the services in controversy, and may also' invoke or 'avail himself of all other legitimate grounds in contesting the allowance of appellant’s claim before the board, or in the circuit court, in the event of an appeal. The rule is elementary, that equity will not assume jurisdiction nor award relief where there exists a complete and adequate remedy at law.
Conceding, without deciding, that, providing the grounds upon which the order of the board and the contract thereunder are assailed in this action can be maintained, an injunction at the instance of appellee, as a taxpayer, would have been granted to prevent the board and appellee from originally entering into the contract or from carrying out its provisions, still the facts disclose such unexcused laches on the part of the plaintiff as will deny him favorable consideration in a court of equity where the laches of' a suitor, as a general rule, receives no favor.
We have stated that the grounds interposed in this action for defeating appellant’s claim, together with any other legitimate ones, may be invoked by appellee in contesting the claim before the board of commissioners. It is asserted, as a general rule, that legal proceedings will not be enjoined upon grounds of which the complaining party may avail himself in defense of the action at law.
Without passing upon the real merits of the controversy, we are of the opinion that appellee, under the facts revealed by his complaint, is not shown to be entitled to equitable relief, for the reason, at least, that he has a complete and adequate remedy at law afforded him by the provisions of a positive statute of which he may easily avail himself. Consequently, he can not, under the circumstances, be permitted to invoke the harsh remedy of injunction. The following authorities, and many others, support the rule which we enforce. Hartman v. Heady, 57 Ind. 545; Palmer v. Hayes, 93 Ind. 189; Caskey v. City of Greensburgh, 78 Ind. 233; Martin v. Orr, 96 Ind. 27; Jones v. Cullen, 142 Ind. 335; High on Injunction (2nd ed.), §29.
The demurrer to the complaint, for the reasons stated, ought to have been sustained. The judgment is therefore reversed, and the cause remanded to the lower court with instructions to sustain appellant’s demurrer to the complaint.