27 Ind. 356 | Ind. | 1866
Suit by John Nave, Zechariah Pyle, Octavius A. Croioley and William D. Parrott, for themselves and all those who are named in a schedule annexed to the com
The modification is as follows: “It is ordered by the board that the following named persons be, and they are hereby, appointed as agents for the county, in their respective townships, to receive the county orders to be issued as bounties to volunteers, substitutes and drafted men, on the quotas of' the several townships in Fountain county, under the late call of the President for 300,000 men, in pursuance of the appropriation made by this board in special session, February 14, 1865, to-wit:” {Here follow the names of
.The complaint avers that county orders, to the amount contemplated, were issued and distributed to the several townships, as provided in these orders; that they were issued without any revenue stamp whatever; that the agents contracted and sold the orders at fifty cents, and less, on the dollar; that the assessment complained of is too large; that the taxable property of the county, both real and personal, for the year 1865, is $6,979,335; that the assessment will raise $139,586 70, which is in excess o’f one-fourth of the appropriation.
The appellee demurred to the complaint, assigning for cause: 1. That the court had no jurisdiction of the subject of the action. , 2. That there was a defect of parties plaintiff’. 3. That the complaint did not state facts sufficient to constitute a cause of action. The court sustained the demurrer and rendered final judgment thereon, and this is the alleged error complained of in this court.
It is urged that these orders were issued in violation of section 24 of the act providing for the organization of county boards, and prescribing some of their powers and duties. 1 G. & H. 252. But if this was so, we do not see why it was ’ not competent for the legislature to legalize the action of the commissioners. These orders were issued without authority of law, and but for the act of March 3, 1865, would be void. The section referred to, however, does not apply to appropriations of the kind under consideration, but only to allowances made to persons in whose favor there exists a liability against the county.
It is claimed that the county orders are void, because they were issued without a revenue stamp. It never was claimed by the government that such orders were embraced
It is claimed that the assessment sought to be enjoined is greater than the law authorizes, and is therefore void. By the act of March 3, 1865, it is provided “ that any levy and assessment for taxes, made' by any incorporated city or town, or board of county commissioners of any county of this State, to procure means to pay any appropriations by them made, or bonds and orders issued for the purposes in the foregoing section enumerated, be, and the same are hereby, legalized: Provided, that the boards of commissioners of such counties, and the municipal authorities of such cities and towns, as may have issued bonds or orders, or made appropriations, for the purposes enumerated in the first section of this act, be, and they are hereby, required to levy and collect a tax sufficient to pay at least one-fourth of the amount of such bonds, orders and appropriations, in each of the years 1865, 1866, 1867 and 1868, which said taxes shall be levied and collected as other county taxes are levied and collected, and when so collected shall be applied to the payment of such bonds, orders and appropriations, in equal proportion to the amount of such bonds, orders and appropriations.” Acts 1865, § 2, p. 126. It is claimed, under this proviso, that thei’e must be an assessment in each
In The People v. Allen, 6 Wend. 486, the court, as wc think, correctly laid down the general rule to be, that where the statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory, unless the nature of the act to be performed, or the language used by the legislature, shows that the designation of time was intended as a limitation of the power of the officer.
In the case in judgment, the proviso to the second section is not a limitation of power. The section, itself legalized all prior assessments made, without regard to their extent, and then imposed a duty on the county commissioners to make an assessment of at least one-fourth of the amount required in each of the years named. Suppose the county commissioners omit this duty, can they not be compelled by means of a mandate to do the act, after the expiration of the time limited? The orders issued by the county in the case at bar were made payable at six and twelve months. Was it the intention of the legislature, in the legalizing act, to deprive the county of the power of meeting its obligations when due ? The act of the county was legalized; it became liable to be sued. Would any court hesitate to enforce a judgment against the county by compelling the commissioners to make an assessment sufficient to meet its obligations ? The orders of the board of commissioners, under which the liability in question was incurred, must speak for themselves. The motives of the commissioners cannot be inquired into. If the orders of the board of commissioners were legalized, and the obligations in question were incurred thereunder, and in pursuance thereof, then the county is bound. As we think the complaint does not state facts sufficient, the question made as to parties becomes immaterial.
There are many points argued in the brief of the appellants, but as they have all been met and answered by this court in the cases of Coffman, v. Keightly, 24 Ind. 509, Oliver v. Keightley, id. 514, The Board of Commissioners, &c., v. Bearss, 25 id. 110, and King v. Course et al., id. 202, we deem it unnecessary to go over the same ground in this opinion. We adhere to the rulings in those cases.
We think the court below committed no error in sustaining the demurrer to the complaint. '
There is an objection made to the form of the judgment. It is claimed that the court- below, on being asked by the appellant so to do, ought to have specified the ground on which the demurrer was sustained, as there were three distinct causes of demurrer assigned. There is nothing in the code requiring this, and we know of no rule of law imposing such a duty on the court.
The judgment is affirmed, with costs.