68 Ind. 575 | Ind. | 1879
The appellant sued the appellee on the following complaint:
“ The said plaintiff complains of said defendant, and says, that, on the 1st day of December, 1875, there was, and for one year prior thereto had been, pending in the Monroe Circuit Court of Monroe County, Indiana, and in the juawrence Circuit Court of Lawrence County, said State, indictments against divers persons, chargiug them with the murder of an unknown person at said county of Monroe; that the said defendants, at their December term, 1875, and in open court, a majority of said defendants concurring, for the purpose of more effectually prosecuting, and procuring to be prosecuted, said persons so charged, employed said plaintiff to co-operate- with the attorneys for the State, and under their direction, to aid in the matter of said cause, on behalf of the State, and agreed to pay said plaintiff such reasonable compensation therefor as might be just- and right, and to reimburse him for such sums as he might occasionally and properly pay out in the said prosecutions ; that, in pursuance of said contract, the plaintiff proceeded to aid in the said business, devoting his time and money to the same ; that his services were reasonably worth the sum of five hundred dollars ; that he expended of his own money, necessarily and properly, in and- about said business, the sum of fifty dollars, which*577 sums remain due and unpaid to plaintiff, a bill of particulars of which services and sums so paid out is filed herewith .”
A demurrer, alleging as ground the insufficiency of the facts stated in the complaint to constitute a cause of action, was sustained, and exceptions reserved. Judgment for appellee on demurrer. Appeal.
Does the complaint aver facts sufficient to constitute a cause of action? This is the only question presented in the ease.
The board of county commissioners is a body corporate and.politic, and in such name may sue and be sued, prosecute and defend suits, and has all other rights and powers incident to corporations not inconsistent with the provisions of the act under which it is organized. 1 R. S. 1876, 350, sec. 5. This act undoubtedly authorizes the board to make contracts, and it may make them by parol in some cases, and be bound thereby; but it can not make contracts of all descriptions and for all purposes for which nattural persons may. It will be confined in making contracts to the powers expressly granted to it by the act of its creation, and to the implied powers incidental and necessary to the execution of such expressed powers and the performance of the duties enjoined upon it. Eor these purposes, it may make contracts, and it will be bound to perform them the same as individuals. Seibrecht v. City of New Orleans, 12 La. An. 496; Straus v. The Eagle Insurance Co. of Cincinnati, 5 O. S. 59; Douglass v. The Mayor and Board of Aldermen of Virginia City, 5 Nev. 147; Hayward v. Davidson, 41 Ind. 212; McCabe v. The Board of Commissioners of Fountain County, 46 Ind. 380; Burnett v. Abbott, 51 Ind. 254; Gordon v. The Board of Commissioners of Dearborn County, 52 Ind. 322; The Board of Commissioners of Jackson County v. Applewhite, 62 Ind. 464; The Board of Commissioners of Jennings County v. Verbarg, 63
Is there any express power or any implied power necessary to execute any express power, or perform any duty, granted or enjoined by the act under which the board of commissioners is organized, which authorizes it to make the contract set out in the complaint? We think not. There is no express power by which the board can employ a person to aid the attorneys of the State in “ more effectually prosecuting, and procuring to be prosecuted,” any person charged with a crime; and no express power making it the duty of the board to employ a person to aid in any such purpose; nor is there any express power granted to or duty enjoined upon the board, which renders such employment for such purposes necessary or proper to execute .its powers or perform its duties.
The judgment is affirmed, at the cost of the appellant.