97 Ind. 176 | Ind. | 1884
The appellant claims that the appellee is indebted to him for services rendered as a surveyor in pro•ceedings to establish a ditch, and in his complaint sets forth .several items; some of these were allowed, and others, on motion, were struck from the complaint. The rejected items were for services in examining the record to ascertain the names of owners of lands adjacent to the proposed ditch, and for services in preparing reports of the viewers.
A claim against a county for services can exist only where 'there is a contract, or where there is a statute providing for them and directing compensation. No person can voluntarily perform services for a county and demand compensation except in cases provided for by statute, and one who demands compensation for services rendered to a county must •show a contract made under due authority of law with the proper officers, or else show a statute making provision for such services. The right to a recovery is not made out by showing the beneficial character of the services, but the claimant must also show either a contract or a statute making provision for such services. It must also be made to appear in ■cases where a contract is relied on, that the contract was within the scope of the authority of the officers or agents who •assumed to make it.
The general authority to contract on behalf of the county is vested in the board of commissioners, and that body possesses extensive, but by no means unlimited, powers. Nixon v. State, ex rel., 96 Ind. 111. The authority of the board is that conferred by statute, and it is, as a general rule, the authorized representative of the county in the matter of making contracts for services, although there are cases where the authority is conferred upon other agents. In the present in.stance the contract with the appellant was made with viewers appointed under the drainage act, and conceding that the authority to employ a surveyor is in the viewers, a point we •do not decide, still it is clear that they can do no more than
The statute provides what services the surveyor shall perform, and designates the rale of compensation. The provisions of the act are, perhaps, not altogether clear, and, in some particulars, are incomplete, but we can not supply deficiencies nor remedy defects; we must act upon the statute as it exists, and not as it might seem to us it should be. Counsel’s arguments as to what should be in the statute might have weight with the Legislature, who can change the law,, but they can have none with courts, who are bound by what has been enacted. We are, therefore, to ascertain what the/ statute is. The only provision regarding the duties of the surveyor that we have been able to find is in section 4288 (R. S. 1881), but we find nothing in that section, even when, construed with the utmost libérality, that makes it the duty of the surveyor to examine the records or prepare the reports of the viewers. That section provides that the surveyor shall assist the viewers in certain matters and shall make all calculations, measurements, estimates, antf do such other work as pertains to his profession, as is necessary for' the information of the viewers, but we find nothing in it providing that the surveyor shall prepare the report. It is his duty to do all the work pertaining to his profession and requiring professional skill and knowledge that may be necessary to supply the viewers with sufficient foundation for their judgment and report, but it is not his duty to make out the report itself. Nor is there anything in the section that
The duties of the surveyor are fixed by the statute, and it is only for services performed in the discharge of such duties that he is entitled to compensation. The statute is carefully worded, and so worded as to strictly confine the compensation for services performed under it.
A finding on the evidence can only be reviewed where there is a proper motion for a new trial, and here there is no motion at all.
We can not say that any error was committed by the court in taxing appellant with costs, for the reason that there is nothing in the record showing that the judgment on appeal was not the same as that rendered by the board of commissioners. Presumptions are always made in favor of the rulings of the trial court, and the appellant who impugns them-must affirmatively show facts overcoming these presumptions. It is true that the appellant testified that his claim had not been paid, but this is far from showing that it had not been allowed. Indeed, the fair inference from the record is that
