140 Ind. 71 | Ind. | 1895
— The board of commissioners of Vanderburg county, at their September term for 1893, entered an order “that the court house, * * furniture and fixtures therein and the boiler house, be insured for the sum of * * $352,000 for the 1erm of five years, and that such insurance be placed in the insurance companies represented by Thomas Kerth & Son, A. M. Weil & Bro., and Bennett & Odell. * * It was ordered that the following named persons be allowed the sums set opposite their names, respectively for the accounts stated, the same to be payable one-half in three months and one-half in sis months, with interest at the rate of 6 per cent, per annum, viz.: Bennett & Odell * * $3,210.88 for premium on $161,000 insurance for five years on court house, jail, and boiler house, and contents; A. M. Weil
Thereupon the appellant filed an affidavit before the board showing that he was a heavy taxpayer of said county, and a resident citizen thereof, “and is aggrieved, by said decisions and allowances, and is interested therein as such taxpayer * * and for the further reason that said court (house) and jail are made and built almost solidly of stone and iron, and that they are fireproof, and that it would be difficult, if not impossible, to burn or materially injure them by fire; that the county treasury is practically empty, and there is no money therein to pay said allowances; that unusual 'stringency in money matters exists; that said alleged insurance is useless, said allowance extravagant, wasteful, and wholly unnecessary, and throwing away the public money at a time when taxation is unusually high and burdensome, and the county treasury depleted and empty; that said contracts, decisions, and allowances were made without any notice by publication, or otherwise, without competition, though there are a dozen or so good, reputable insurance agencies in the city of Evansville, none of whom, as he is informed and believes, had any notice of said contracts, decisions or allowances, or chance to compete for said insurance. Wherefore, he prays an appeal,” etc. He also filed an appeal-bond to the approval of the auditor, who certified the proceedings to the superior court of said county, to which the appeal was prayed as appellant claims under sections 7856, 7858, and 7859, Burns R. S. 1894 (R. S. 1881, sections 5769, 5771 and 5772.)
Upon the motion of the appellees, the superior court
It is contended by the appellant ‘ ‘that the only reasonable construction of sections 5769 and 5771, R. S. 1881 (Burns R. S. 1894, sections 7856 and 7858) is, that an appeal lies in all cases and in the case presented here. It makes no difference [counsel say] how the claim arises, whether from a shameless proceeding such as the one disclosed by the record here, or one arising out of the most meritorious contract. It must take its course [they say] as provided by the sections cited.”
It has become thoroughly settled in this court, that the board of commissioners are clothed by statute with administrative or ministerial powers and also with.judicial powers.
When they exercise administrative or ministerial functions they do not act as a court, but in their capacity as a corporation. When they exercise judicial functions, then they act as a court. It is only when they act as a court and exercise judicial functions that an appeal lies from their decisions. Platter v. Board, etc., 103 Ind. 360; O’Boyle v. Shannon, 80 Ind. 159; Bunnel v. Board, etc., 124 Ind. 1.
Tt is contended by the appellant that by section 7858
In fact the whole ground of the appeal, stated in appellant’s affidavit, showing his interest and grievance,
As the allowances can only be reviewed on the appeal to the superior court by reviewing and setting aside on such appeal the act of the board in entering into the insurance contracts, which is purely ministerial in its character, from which no appeal lies, it follows that the whole order partakes of the same character and can not be separated; it must necessarily all stand or fall together, and to maintain the right to appeal from a part of it the appellant must maintain the right to appeal from all of it.
It is sufficient to say that the acts complained of were authorized by law.
The statute provides that "such commissioners shall have power at their meetings * * to make all orders respecting the property of the county * * and to take care of and preserve such property.” Bums R. S. 1894, section 7829 (R. S. 1881, section 5744).
It does not in so many words say they shall insure such property, as the commissioners did in this case, but if in their judgment and discretion that is necessary, to take care of and preserve such property, then the statute imposed the duty and conferred the power on them to effect such insurance. That, however, was a purely business proposition, and not judicial in character in any sense of the word. The Legislature could not reasonably have intended by the word decision, as used in the sections referred to, to include action by the board of commissioners in matters of a purely ministerial or business character, wherein the board acts solely as a
In such a case as the one before us, there is no controversy about or upon any question of fact or upon any question of law between the appellant and appellee in the superior court. The sole question made by the appeal to the superior court was not whether the board had the power, and was in duty bound to insure the county property, but the question made was whether it was a prudent business transaction to insure the property at that particular time,-taxes then being very high and the county treasury very low, the county buildings being in a manner fire proof, and especially the insurance ought to have been effected, as it was claimed, at a lower rate, and to that end the board, counsel say, ought” to have invited competition between all the insurance companies, a dozen or so in number represented by agencies in the city of Evansville, the county seat, which it is alleged the board did not do. All these were purely business propositions, invoking only the ministerial or administrative powers of the board, resting solely in their sound discretion, and to deal with which the superior court had no power whatever, except to dismiss the appeal as it did. Platter v. Board, etc., supra: Davis v. Board, etc., 136 Ind. 503; State, ex rel., v. Board, etc., 131 Ind. 90; Farley v. Board, etc., 126 Ind. 468.
But we do not mean to hold that from an allowance pure and simple, an appeal will not lie; on the contrary
It is bitterly complained by the appellant that if an appeal is not allowed in such a case as this, the people ¿ave no remedy. There are many business or administrative acts the board may do that would seem ill advised and imprudent to even a majority of the voters and taxpayers of the county, and yet there is no other remedy in such a case than that of the ballot box. The superior court did not err in dismissing the appeal.
The judgment is affirmed.