Graham v. Board of Commissioners

25 Ind. 333 | Ind. | 1865

Ray, J.

On th 6th of January, 1865, the auditor of Daviess county issued his precept to the sheriff, directing him to summon the board of commissioners to meet at the court house on Saturday, January 14th, 1865. This writ was served on the 7th of January. At a special January term of the board, on the 4th day of said term, being January 21st, 1865, the board passed an order appropriating $600 in county orders to volunteers, drafted men and persons furnishing substitutes in anticipation of the pending draft, mustered into the service of the United States and credited on the quota of the county. The auditor of the county was authorized to issue the county order upon the certificate of the mustering officer at Indianapolis. On the 10th of February, the board again met in special session and passed an order approving the action of the auditor in issuing eighty-one orders, under the resolution of the board passed at their January session, the orders having been issued upon the certificate of the provost marshal at FuansviUe, instead of the officer at- Indianapolis, and ordering that three persons who had furnished substitutes should each be paid $600 in county orders, upon their paying $50 each into the county treasury.. On the 16th day of February, Graham filed an affidavit alleging that he is a citizen of said county; tliat the action of the board is illegal, and that he is aggrieved thereby, and asking an appeal from said order. He also filed an appeal bond, which was approved, and a transcript of the proceedings was certified to the Circuit Court. In the Circuit Court the board of commissioners appeared by attorney and moved the court to dismiss the appeal, for the reason that “the board were justified bylaw in making said appropriations; and that the acts of the board were legalized by a late act of the legislature; and that no appeal was authorized from said order, and an imperfect record herein.” The court sustained the' motion, and rendered judgment against Graham for costs. Graham excepted, and appealed to this court.

The errors assigned are, that the court erred in sustaining the motion to dismiss the appeal, and in rendering a judgment against Graham for costs.

J. W. Burton,'A. G. Porter, B. Harrison and W. P. Fish-back, for appellant. B. A. Clements, jr., for appellee.

Every provision of the statute in regard to taking an appeal from an order of the commissioners has been complied with. The affidavit has been filed in the office of the county auditor, showing the interest of the party appealing, and the affidavit clearly indicates the orders from which the appeal is taken. The appeal bond is also filed and approved by the auditor. It is objected, however, that two ajtpeals should have been taken. If this were true, it would furnish a very unsatisfactory reason for dismissing without trial the one which had been taken. But the appeal is sufficient. The second order is but an approval of the proceedings of the auditor in issuing the county orders upon the certificate of the officer at Fvansville, in place of the officer at Indianapolis. It was but a continuance and part of the original proceedings, and the appeal presented the entire action of the board of commissioners for review in the Circuit Court. The motion to dismiss assumes the very question to be decided in the court, whether the act of the legislature had legalized the orders of the commissioners? This question, the appeal presented to the court for decision, and it was the duty-.of the court to pass upon it.

The order and judgment dismissingthe appeal is reversed, with costs, and the cause remanded for further consideration in the Circuit Court.