186 Ind. 602 | Ind. | 1917
At the September, 1906, term of the Huntington Circuit Court, in a certain drainage proceeding in which appellee Kaufman was the petitioner, bills for services rendered by the drainage commissioners, rodmen, axmen, and for materials used by them,
The drainage proceedings terminated. May 25, 1909, when on appeal to this court, the judgment of the Huntington Circuit Court dismissing the proceedings was affirmed. Kaufman v. Alexander (1909), 173 Ind. 136, 88 N. E. 502. The opinion in that case, in substance, states the facts which form the basis for this action.
The drainage commissioners made their report on October 2, 1906, locating the proposed drain, and when the county treasurer paid the amounts for which reimbursement is now sought, the proceedings were pending on the report made pursuant to the act of 1885, as amended. This act, with its amendments, was repealed by an act of the general assembly approved March 11, 1907 (Acts 1907 p. 508, §6140 et seq. Burns 1914), which provided that all pending proceedings should be completed under the new act, except such as were commenced under the act of 1905, (Acts 1905 p. 456, §5622 et seq. Burns Supp. 1905), and they were to be concluded under that act. On April 17, 1907, and after the new law took effect, a two-thirds remonstrance was filed, as authorized by §3, Acts 1907, supra, to the report of the drainage commissioners, resulting in the court dismissing the petition at the cost of the petitioner, and the drain- was never established.
Appellees insist that the county was not under any obligation to make the payments in question; 'that they were purely voluntary, and that it is not entitled to subrogation, citing Fast v. State, ex rel. (1914), 182 Ind. 606, 107 N. E. 465, and Moorhouse v. Kunkalman (1911), 177 Ind. 471, 96 N. E. 600.
The case at bar is not prosecuted by those whose services were rendered pursuant ’to a statute invoked by the petitioner; if so, there would be no question as t.o his liability. But appellant in support of its insistence calls our attention to §1, Acts 1903 p. 120, and §§1 and 5, Acts 1903 pp. 421, 424. Both of these acts pertain to proceedings begun before the board of county commissioners. The first of these acts was considered by this court in the case of Fast v. State, ex rel., supra, and it was held there that payment for the services of an engineer, viewers, reviewers and laborers was payable
Appellant also insists that if the petitioner is not liable to reimburse the county in this instance, because of no statute expressly so providing, then he is liable upon the theory that, the county having paid claims for which he was answerable, it thereby became subrogated to the rights of the claimants. We cannot agree with this contention. This insistence could be sustained only by sanctioning a principle which would have authorized the petitioners in the Moorhouse case to demand, as a matter of right, the payment of their claims out of the county treasury. For, if the right of payment out of the county treasury was given by law, conditioned only upon the amounts due being first ascertained and fixed by the court, then the establishment or nonestablishment of the drain would not affect claimants’ right to have their claims paid out of the county treasury. For, in either event, the county would be entitled to reimbursement from the assessments or the petitioner as the case might be. This is not the law. The only provision in the statute here controlling for reimbursing the treasury is found in the same section authorizing the payment, and is stated thus, §11 supra: “For their services * * * shall be allowed and paid out of the County Treasury * * *: Provided, That the County Treasury shall be reimbursed * * * by the assessments collected.” It would seem to us that the word “provided” as used in §11 creates a condition or limitation on the generality of the words preceding it; that is to say, the compensation shall be paid out of the county treasury on condition that such treasury is reimbursed out of the assessments collected. Heaston
answer suggested is by right of subrogation. Let us apply this doctrine. In Opp v. Ward (1890), 125 Ind. 241, 24 N. E. 974, 21 Am. St. 220, this court by Mitchell, J., said: “The application' of the doctrine of subrogation requires (1) that a person must have paid a debt due to a third person, for the payment of which another was in equity primarily liable; and (2) that in paying the debt the person paying acted under the compulsion of saving himself from loss, and not as a mere volunteer.” It cannot be said that the county, in the present case, acted under any compulsion of saving itself from loss, for according to our view, as said in Fast v. State, ex rel., supra: “The liability for such expenses rested solely with the petitioners and the county was under no obligation to pay them.”
Note. — Reported in 117 N. E. 643. Parties entitled to the right of subrogation, 99 Am. St. 496. See under (3) 37 Cyc 375; (4) 37 Cyc 390; (5) 11 Cyc 755.