16 Ind. App. 317 | Ind. Ct. App. | 1896
Lead Opinion
At the general election in 1890 John J. Puttmann was elected auditor of Decatur county,
The only question presented for our consideration is whether, under the circumstances, the county is liable for the supplies shipped by appellants in October, 1892, for use at the November election of that year, on the order made by the auditor in April, 1891, which supplies were not accepted or used by appellee. The judgment of the trial court was against appellants.
In our opinion no reason has been shown that would justify this court in reversing the judgment.
The order was given- by the auditor after his successor had been elected and within a few months of the expiration of his term of'office. The supplies in question were not to be used until one year after the expiration of-his term of office. No reason has been suggested for giving the order so long in advance of the time when the supplies would be required. Moreover, five months after the order was given and fourteen months before the election, the board of commissioners entered into a contract with another to furnish supplies required in the conduct of public business. At this time appellee had no knowledge of the order given by the auditor to appellants. It is conceded that at this time appellants had done nothing in pursuance of the order, and the circumstances in
Counsel for appellants insist that the appellee is liable, under the provisions of section 6203, Burns’ R. S. 1894, and that the act of 1885, relative to the purchase of books, stationery and other articles for the several county officers and for the conduct of public business has no application. 1 R. S. 1876, p. 352.
Without construing these statutes we may assume, for the purpose of this case, “If the work was done in the interest of the people of the county,” appellee would be “liable for the reasonable value of the work and supplies so performed and furnished.” Board of Commissioners v. Menaugh, 13 Ind. App. 311.
In this instance the “work and supplies so performed and furnished” did not inure to the benefit of the “people of the county.”
If the supplies had been used they would have been “in the interest of the people of the county,” and the appellee should have paid at least the reasonable value therefor. If the auditor has power as the county’s agent in the discharge of the duties of his office, in any case, to order or purchase a suitable number of blank forms of poll books and also forms of election returns, and also all other proper blanks necessary to be used in an election, the county can only be liable for his contract in relation thereto when such power is exercised by him while acting within the scope of his authority. In our opinion in any view of the case, the auditor was not acting within the scope of his authority in giving such an order for such supplies after his successor had been elected, shortly before the close of his term of office and more than eighteen months before the day of election at which
Judgment affirmed.
Rehearing
On Petition foe Rehearing.
Counsel for appellants insist that in stating the substantial facts out of which this controversy arose, we did not take into consideration the reply. In this position counsel are in error, but we have again carefully examined the answer to which the demurrer was overruled and the reply to which the demurrer was sustained. In the reply it is averred that at the time the order was given to appellants by Kennedy “there was no existing contract or order given by the defendant, nor by any one else acting for the defendant, for the furnishing of books, blanks, etc., as provided in and called for by said order.” It is also averred in the reply that the contract with Caskey did not cover the books, blanks, etc., covered by order of said Kennedy, but the fact that Caskey “under said contract did furnish all the blanks used for election purposes in Decatur county, Indiana, for the holding of the general election in said county, held in November, 1892,” is not controverted.'
The substance of the reply is, “that at the time said order was given, as aforesaid, and at no time since has
As stated in original opinion, his successor who was elected in 1890 entered on the discharge of the duties of the office in November, 1891. Assuming that it was a part of the duties of the auditor to make out and furnish the supplies to the inspectors of the election, Kennedy had no authority to bind the county by an order for such supplies to be furnished more than eighteen months in the future for an election to be held more than eleven months after the expiration of his term of office. Such an order as that given to appellants by Kennedy under the undisputed facts and circumstances of this case as disclosed by the answer and reply, when considered most favorably in behalf of appellants, is void so far as the county is concerned as against public policy. Such contracts cannot be upheld or enforced by the courts.
The petition for a rehearing is overruled.