123 Ind. 167 | Ind. | 1890
This was a suit instituted in the Howard Circuit Court to compel the auditor of that county to draw his warrant on the county treasury for certain moneys alleged in the complaint to be due the appellant as surveyor of said county.
The complaint alleges, substantially, that the appellant has been the duly elected and qualified surveyor of Howard county since the 20th day of November, 1888 ; that as such
It is disclosed by the bill of particulars filed with the complaint, that of the claim demanded, $93 is for work done by the relator, and $184.50 is for work done by deputy.
The court sustained a demurrer to the complaint, and the relator failing to plead further the appellee had judgment for costs.
The assignment of error calls in question the correctness of the ruling of the circuit court in sustaining a demurrer to the above complaint.
By the first section of an act of the General Assembly of the State, approved February 28th, 1889, Elliott’s Supplement, section 1202, ditches constructed under the laws of the State are put under the control of the township trustees of the several townships in which they are situate. Section 1203 makes it the duty of the county surveyor of the county, in which any of such ditches or drains may be situate, to view and examine each and every such ditch or drain, within his county, and to fix and determine the portion thereof that the owner of each tract of land and each corporation, county or township, assessed for the construction thereof, should annually clean out and keep in repair ; and at the same time, set apart and apportion to each parcel of land, a share or portion of such ditch or drain according to the benefits to be received thereby, to be cleaned out annually and kept in repair by the owner of each such tract of land, etc. Section 1204 provides for making a record of such apportionment and for notice to the parties interested in the same.
It is provided by section 1206 that “The surveyor
The sole question presented and argued for our consideration is the question as to whether the relator is entitled to three dollars per day for labor performed by his deputies, under the provisions of this act.
Section 5952, R. S. 1881, provides that the county surveyor may appoint deputies, but our attention has not been called to any statute, and we know of none, which authorizes the payment of deputy surveyors. They have heretofore been paid, we presume, by the surveyor.
Under section 5959, R. S. 1881, fixing the surveyor’s fees, he is not allowed a per diem except in the single case of locating roads. In all other cases a specific fee is fixed for specific services. The statute under consideration, however, does not provide for a specific fee, but for a given sum to be paid the surveyor for each day’s services. It provides that after a completion of the apportionment the surveyor shall give notices to those interested of a time and place when he will hear complaints as to his action, and provides for an appeal from his decision on such complaints as may be made before him to the circuit or superior court of his county. The hearing and disposition of these complaints could not be had before a deputy, for it is in its nature judicial, and judicial power can not be delegated. State, ex rel., v. Noble, 118 Ind. 350, and authorities there cited. There can be no such thing as a deputy judge.
It would seem that the Legislature contemplated that the surveyor should perform the services required of him under this act personally. In addition to the evidence that maybe introduced before him, conceding that the law authorizes a trial, he is presumed to have a personal knowledge of the matters in controversy, and of the location and condition of the land sought to be drained and benefited. This he can
The rule is that before a public officer can demand and receive compensation for services rendered for a county, in the absence of a contract, he must show: First. A statute authorizing him to receive compensation for such services, and fixing the amount thereof; and, Second. A statute authorizing the commissioners to pay for such services out of the county treasury.
_ It has been uniformly held by this court since the case of Rawley v. Board, etc., 2 Blackf. 355, that a county can not be liable for fees and charges of officers without an‘express statute upon the subject.
It follows that as there is no statute fixing any compensation to be paid to deputy surveyors for services rendered to the county, or to any one else, the county can not be required to pay for such services.
It is believed to be the universal rule that where the law fixes no compensation for deputies, they must be paid by the officer who employs them, and not out of the public treasury.
To hold that a county surveyor could perform the work required of him under this statute by deputy, and charge the per diem fixed by law for each day such deputy served, would be to open the door to the grossest frauds. It would allow the surveyor to employ persons much less skilful and competent than himself, at a small compensation, and thus speculate upon the public. If he employed five deputies in one day, at one dollar and fifty cents each, and charged three dol
There is no error in the record.
Judgment affirmed.