96 Ind. 111 | Ind. | 1884
Lead Opinion
The complaint of the relator alleges that on the 16th day of June, 1873, the board of commissioners of Fountain county, issued bonds of the county for the purpose of building a jail, and that to pay interest on these bonds, and to create a sinking fund for the payment of the principal, taxes were duly levied; that the taxes levied exceeded the interest in the sum of |60,000, and that sum was placed in the hands of Isaac Haupt, then the treasurer of the county; that on the 10th day of June, 1879, the board of commissioners, at the request of Haupt, made the following order : “ It is ordered by the board that the county treasurer be and he is hereby authorized to invest fn United States bonds on the best terms obtainable, from time to time, such amounts of county funds as may accumulate in the county treasury, over and above the amounts necessary to defray ■current expenses of the county, and the county treasurer ■shall hold said bonds in the treasury for the payment of the county bonds issued for the payment of the cost of the construction of the county jail, when the same become due.” It further alleged, that pursuant to this order Haupt, as treasurer and agent of the county, purchásed government bonds to the amount, in all, of $50,000, and that such bonds were registered as owned by “ Isaac Haupt, treasurer of Fountain county, Indiana;” that the purchase of the bonds was reported by Haupt to, and his action fully confirmed by, the board of commissioners; that when he made his settlements in ■June, 1880, and in June, 1881, the bonds were treated as the property of the county, and as such accounted for; that Isaac Haupt’s term of office expired on the 15th day of August, 1881, and on that day the appellant, as his successor, took possession of the office; that the latter received the bonds with other property, for and in behalf of the county, and executed the following receipt:
*113 “$59,541.58. Covington, Ind., Aug. 14,1881.
“ Eeceived of Isaac Haupt, ex-treasurer of Fountain county, Indiana, the sum of fifty-nine thousand five hundred and forty-one dollars, being the balance due said county on account of county funds held by said Haupt at the close of his term of office as county treasurer, as per exhibit this day made, ■said amount consists of the following items:
Five per cent. United States bonds at par value . $25,000 00 Four per cent. United States bonds at par value . 25,000 00 “Currency............. 9,541 58
“Total................$59,541 58
“ Henry P. Nixon,
“Treasurer of Fountain County, Indiana.”
It is also alleged in the complaint, that Nixon made report, as treasurer, to the board of commissioners, but the board refused to approve it, because it did not account for the bonds received of his predecessor in office; that he was afterwards ordered to sell the bonds, and did sell them, but refuses to account for the premium received thereon.
We do not deem it necessary to inquire whether the county had or had not authority to direct the then treasurer, Haupt, ■to buy the bonds of the United States, for we are satisfied that Nixon has no right to contest his principal’s ownership of the bonds. He received them as the property of the county from his predecessor in office, and he must account for them as the property of the county. It is not for him to dispute the authority of the county to acquire and hold property; he is charged with no such duties, and invested with no such functions. His duty was to care .for the property entrusted to his custody, and not to dispute the right of the county to entrust him with it. In many cases the principle which rules the case at bar has been declared and enforced. It was said, in Wilson v. Town of Monticello, 85 Ind. 10, that “ It is a familiar doctrine that an agent who receives money on account
It is a familiar rule that profits accruing from the property of a principal belong to him, and not to the agent. This-principle runs through all cases where there is a relation of trust, and it is everywhere held that the profits belong to the-owner of the property, and not to the mere custodian. A forcible illustration of the application of the rule is furnished by the case of Hadley v. State, ex rel., 66 Ind. 271, wherein it was held that the treasurer of a school corporation is bound to account for interest accrued on warrants issued to him by the city officers. The case cited is identical in principle with the present, and controls it.
The question between Nixon and the relator is entirely different from what would have been the question had his pred
County commissioners have extensive, although by no means unlimited, powers over county finances, and when they accept the settlement of county officers and take property, their acts will generally be sustained.- In the present case, they had authorized Haupt to buy these bonds, had approved his current and final reports showing .the purchase and possession of them, and Nixon had treated them as the property of the county. Under these circumstances, he can not be heal’d to aver that the board of commissioners transcended its powers. The case is not at all like that of county officers doing a thing made illegal by statute, nor is it like that of officers going entirely outside of the line of their duties. A review of the adjudged cases will show that the purchase of the government bonds-was not prohibited by statute, nor, indeed, entirely beyond the authority of the commissioners. In Halstead v. Board, etc., 56 Ind. 363, it was held that the board of commissioners had authority to lend county funds, and that they might under this authority buy and take an assignment of a mortgage, although the transaction was not technically a loan. It was said in Board, etc., v. Saunders, 17 Ind. 437, that “ We are of opinion that under these and various other statutes that might be referred to, the board of county commissioners have a supervisory control over the finances of the county, and consequently have the power to settle in reference to the same, and to bind the corporation by such settlement.” In Vanarsdall v. State, ex rel.,65 Ind. 176, it was held that the board had authority to take
Judgment affirmed.
Rehearing
On Petition fob a Rehearing.
Counsel for appellant insists that we did not correctly state the averments of the complaint upon the subject of the ownership of the bonds, and asserts that it is not averred that they belonged to the county and were so treated prior to the appellant’s induction into office. The record directly and unmistakably refutes counsel’s assertion. It is repeatedly averred that the bonds did belong to the county, and were delivered to and received by the appellant as the property of the county. We copy one of the many averments of the complaint: “ That in pursuance of said order and under and by virtue of the same, and not otherwise, the said Isaac Haupt, as treasurer of said county, and as agent of the board, did, on or about the 26th day of November, 1879, for the use and benefit of said county, purchase of the United States registered bonds of said government.”
The answer does aver that the appellant did not have any agreement with his predecessor that he should hold the bonds as the property of the county, but it contains no denial of the receipt set forth in the complaint, and that shows how the bonds were received and held. It is true that a receipt may be explained or contradicted, but there are no facts stated explaining or contradicting it, and, therefore, it is admitted to be correct. The recitals of.a receipt are, as everybody knows, prima facie true. But suppose it to be true that .appellant had signed no such receipt, and had made no agreement with his predecessor, still his answer does not meet the material averment in the complaint that the property belonged to the county. We suppose it to be perfectly clear that an incoming treasurer can not acquire title to property which the county owns because his predecessor omits to notify him that
The authorities cited in the original opinion show that the county may buy property, and if it may do this there is no reason why it may not buy government bonds where it is requested by the treasurer, and in cases where it becomes necessary for the protection of the fund to make some investment. It is shown in this case that the treasurer desired the investment to be made in order to ensure the safety of the fund, and that it was made long before the appellant came into office. No rule of law or ethics authorizes an incoming treasurer to sit in judgment’on the acts of his predecessor and of the board of commissioners performed long before he entered upon his official duties. If a county board buys property it has no right to buy, the treasurer can not seize it for his own profit. There is a way to try such a question, but it is not the one adopted by the appellant.
The case of Board, etc., v. Fennimore, 1 Coxe (N. J.) 242, so much relied upon by the appellant, is not in point. We give the entire opinion: “Per Guriam. — The evidence is admissible; these bonds must have been received as cash, for the defendant, in the capacity of county collector, had no
The appellant did not purchase the bonds; he simply received them as property turned over to him by his predecessor in office, and was not entitled to notice of how they were held; but if he had been, the manner in which such bonds were registered was sufficient to impart notice of the fact that Haupt did not hold them in his individual right. Bundy v. Town of Monticello, 84 Ind. 119; Shaw v. Spencer, 100 Mass. 382. Not only did the registry impart notice, but the face of the bonds themselves also gave definite information of the official character of the person to whom they were payable.
We might have disposed of the questions now made upon the answer by treating them as waived, by a failure to discuss them in the original brief, but we have thought it better to dispose of them by a decision upon their merits.
Petition overruled.
