106 Ind. 345 | Ind. | 1885
Lead Opinion
In this case, the circuit court sustained the demurrer of the appellee, Williams, to the complaint of the appellant,. Vandercook. This ruling is the only error assigned here by the appellant, and it presents for our decision the question of the sufficiency of facts, stated in his complaint, to constitute a cause of action.
In his complaint, Vandercook alleged that, on the 12th day of June, 1883, one Robert H. Johnson, then and since the auditor of Steuben county, entered into a contract with the board of commissioners of Steuben county, in the words and figures following, to wit:
“ Whereas, it appearing that large sums of taxable property escape taxation, by reason of evasions and concealments on the part of the owners thereof; and whereas, the board of commissioners find an indispensable public necessity, that a competent person should be employed to collect the necessary facts and evidence for the recovery of such taxes, and all other moneys due the county and State aforesaid, order the following: That Robert H. Johnson, auditor of Steuben county, be and he is hereby employed and directed to make*347 search for all such omitted and concealed taxables, and also for the evidence of all other moneys due said county, and proceed with reference thereto in the manner provided by law, and in accordance with the written contract executed this day, which contract is in these words, to wit: 'This agreement made and entered into, this 12th day of June, 1883, by and between the board, of commissioners of Steuben county, of the first part, and the auditor of said county, of the second part, witnesseth: That, by the contract, the party of the second part is hereby employed by the party of the first part to diligently search for and discover in a lawful manner ■omitted, concealed and unassessed taxable property, as provided for by section 6416 of the Revised Statutes, the taxes upon which property being lawfully due said county and State. The party of the second part shall also make diligent search •and examination for evidence of other moneys due said county, which, by reason of negligence, have been lost to the county •, said second party, after the said discoveries, shall be governed by the laws in relation thereto and act accordingly. For and in consideration of the services above named, being done and performed by the party of the second part, and thé necessary expert assistance, the party of the first part covenants and agrees to pay the party of the second part a sum equal to thirty per centum of the money and taxes recovered by the treasurer of said county by reason of the aforesaid discoveries: Provided, That said percentage nor any part thereof shall be paid or deemed due and owing until such money and taxes have actually been paid into the county treasury, and that immediately upon such money and taxes having been paid into the treasury, then and in that ease the aforesaid commission shall become due and payable by the board of commissioners of Steuben county, whenever they may be in session. This contract shall continue in force for one year from this date; the work to be proceeded with as soon as possible. In witness whereof,” etc. (We omit the signatures to this contract.)
And the appellant averred, that the taxes so assessed by Robert H. Johnson as such auditor, under the foregoing contract, were and are absolutely void, for the reason, among
Several objections are urged by the appellant’s counsel to the decision of the circuit court in sustaining the appellee’s demurrer to the foregoing complaint. In their brief of this cause, the appellant’s counsel contend that “ the following propositions are indisputably the law:
“ 1. That the auditor, in determining what property of appellant was taxable and what was its value, acted judicially.
“ 2. That an interest in the questions, thus to be determined, would render his decision void.
“ 3. That if, by a contract with the board of commissioners, he secured thirty per cent, of the amount of taxes by him assessed against the appellant, his decision of the question was void, though the contract was illegal and not enforceable against the board.”
In their brief the appellant’s counsel, in speaking of the circuit court’s decision, say : “ In passing upon the demurrer, the court below held the contract between the board and the auditor void. The judge also held that because the contract was void, though believed to be valid by the auditor, its legal invalidity had the effect to render him an impartial and disinterested judge, and his judgment as to the taxability of the property, alleged by him to belong to the appellant, and his estimate of its value, fair and valid; that, for this reason, the judgment of the auditor, upon the question raised by the demurrer, must be legally regarded as free from bias and the
We have quoted thus liberally from the able brief of the appellant's learned counsel, not alone to show the grounds upon which they ask for the reversal of the judgment below, but also to disclose the line of argument they have pursued, in endeavoring to support their positions. The first question for decision in this case, as it seems to us, may be thus stated .- Is the contract by and between the board of commissioners and the auditor of Steuben county, a copy of which is set out in the appellant's complaint, authorized ■ by law, and, therefore, a valid, legal and binding contract ? Upon the face of such contract, it is manifest that it was executed by the parties thereto upon the supposition, at least, that its execution was fully authorized by the provisions of section 6416, R. S. 1881, in force since March 29th, 1881. This section of the statute is mentioned in such contract, and provides as follows :
“ Whenever any county auditor shall discover or receive credible information, or if he shall have reason to believe, that any real or personal property has, from any cause, been omitted in whole or in part in the assessment of any year or number of years from the assessment-bo,ok or from the tax-*351 duplicate, he shall proceed to correct the tax-duplicate and add such property thereto, with the proper valuation, and charge such property and the owner thereof with the proper amount of taxes thereon, to enable him to do which he is invested with all the powers of assessors under this act. But before making such correction or addition, if the person claiming to own such property, or occupying it, or in possession thereof, reside in the county and be not present, he shall give such person notice in writing of his intention to add such property to the tax-duplicate, describing it in general terms, and requiring such person to appear before him, at his office, at a specified time within ten days after giving such notice, to show cause, if any, why such property should not be added to the tax-duplicate; and if the party so notified do not appear, or, if he appear, and fail to show any good and sufficient cause why such assessment shall not be made, the same shall be made. The county auditor shall, in all cases, file in his office a statement of the facts or evidence on which he made such correction; but he shall in no case reduce the amount returned by the assessor, without the written assent of the auditor of state, given on the statement of facts submitted by the county auditor. No person other than the officials provided for in this law shall be employed by the county commissioners to discover omitted property.”
Assuming to act under these statutory provisions, the board of commissioners of Steuben county and the auditor of such county entered into the contract or agreement, set out in the appellant’s complaint. It will be seen from such contract or agreement, a copy of which we have heretofore given in setting out the substance of appellant’s complaint, that the county board thereby attempted to employ the county auditor, inter alia, “ to diligently search for and discover, in a lawful manner, omitted, concealed and unassessed taxable property, as provided for by section 6416 of the Revised Statutes, the taxes upon which property being lawfully due such county and State.” It will be further seen that in such contract or
In section 5907, R. S. 1881, in force since May 31st, 1879, it is provided that the county auditor shall be allowed an annual specified sum, “ and no more, for his services,” except a certain addition thereto dependent upon the population of his county, as shown by the last preceding United States census, and except, also, an annual allowance of one hundred dollars for making reports to the auditor of state. It was not competent, therefore, for the county board to covenant .and agree to pay the county auditor any additional compensation for his services in the discharge of any of his official or statutory duties; nor was it competent for such county auditor to contract for, or to accept and receive, any such additional compensation for his services. City of Fort Wayne v. Lehr, 88 Ind. 62; Miller v. Embree, 88 Ind. 133.
It is probable, we think, that the contract or agreement, .set out in appellant’s complaint, was executed by the parties
We conclude, therefore, that the contract or agreement, set out in the appellant’s complaint, is wholly unauthorized by the statute, and,( therefore, is void. Such contract or agreement is also void as against public policy. The law will not tolerate the employment of a public officer to discharge his plain official duty, at a compensation other or different from, ■or in addition to, the compensation given him by law for his official services. Especially so, where, as in this case, the amount of such additional compensation is, by contract, made to depend upon the exercise of his individual judgment in the discharge of his official duty. Public policy, as well as law, forbids the execution or enforcement of such a contract or agreement.
The question remains for decision, what effect does the fact that the assessment of appellant’s omitted property, of which
We conclude, therefore, that the facts stated in the appel
The judgment is affirmed, with costs.
Rehearing
On Petition for a Rehearing.
Appellant’s counsel ask a rehearing of this cause, and support their petition therefor by an able and exhaustive argument. In our original opinion, we held that the contract or agreement, set out in appellant’s complaint, “by and between the board of commissioners of Steuben county, of the first part, and the auditor of such county, of the second part,” was illegal and void for two reasons, namely % 1. Because it was wholly unauthorized by the statute (section 6416, R. S. 1881), and therefore void; and 2. It was void as against public policy, because “ the law will not tolerate the employment of a public officer to discharge his plain official duty, at a compensation other or different from, or in addition to, the compensation given him. by law for his official services.”
Thus far, our original opinion was favorable to the appellant, and we do not understand that his learned coilnsel complain of such decision, nor of the reasons assigned therefor. But we went further, in our original opinion, and held therein that although such contract or agreement was unauthorized by law and void, as against public policy, and although the execution and existence of such illegal and void contract prompted and induced the county auditor to make the assessment of appellant’s omitted property, of which he complained, yet his complaint was bad on demurrer, because he had nowhere averred therein that he did not own the omitted property, wherewith he was so assessed by such county auditor, nor that such property was for any cause exempt from taxation, nor even that the county auditor had placed an unjust or excessive valuation on such property. Upon this
Appellant’s.counsel vigorously assail, in argument, this holding of the court. They say: “It is not enough, in the opinion of the court, to avoid the decision of a judge from whom no change of venue can be taken, whose decision is final, and from which there is no appeal, that he is interested largely in the very point decided, but that a party to such decision is bound by it, unless he avers and proves that it was necessarily wrongful and unjust in point of fact. In other words, that the decision of such a judge, though the law provides no means of removing the cause from him or vacating the judgment by appeal or otherwise (as is the case with the auditor) is presumably rightful and just, and therefore, until the contrary is alleged and proved, must stand as a valid and binding judgment.” And so on, through thirteen pages of closely printed matter, appellant’s counsel have labored assiduously and learnedly to show that, under the law, a county auditor is a judge and acts as such in the discharge of the duties imposed on him by section 6416, supra, in relation to the assessment and valuation of omitted property, and the addition thereof to the tax-duplicate, for the purposes of taxation. To enable the county auditor to dis
In the organic or fundamental law of this State, section 1 of article 3, it is thus ordained: “ The powers of the government are divided into three separate departments; the legislative, the executive, including the administrative, and the judicial; and no 'person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution expressly provided.” Section 96, R. S. 1881.
In section 1 of article 7 of our State Constitution, it is thus declared: “The judicial power of the State shall be vested in a Supreme Court, in circuit courts, and in such other courts as the General Assembly may establish.” Section 161, R. S. 1881.
A county auditor is an officer, belonging to the administrative branch of the executive department, and in section 6 of article 6 of the State Constitution, it is ordained that all county officers shall- “perform such duties as may be directed by law.” Section 156, R. S. 1881. It is nowhere provided, expressly or otherwise, in our State Constitution, that any county auditor or other officer, of the administrative branch of the executive department of the State government, may exercise any of the functions of the judicial department. In this case it is not claimed that the statute -has invested the county auditor with the judicial power of the State, or has authorized such auditor to exercise any of the functions of the judicial department of the State government. If the statute had invested the county auditor with judicial power, or had' authorized such auditor to exercise judicial functions, in the discharge of any of the duties imposed on him by law, it is certain that the statute, to that extent, would have been
It follows from what we have said, that under our laws and decisions the auditor of Steuben county was not and could not have been a judge, invested with the judicial power of the State, and authorized to exercise judicial functions; and, further, that his proceedings and acts as such auditor, under -the provisions of section 6416, supra, in the assessment of appellant’s omitted property for the purposes of taxation, were under our law in no proper or legal sense a judgment. This conclusion disposes of the entire argument of counsel, in support of appellant’s petition for a rehearing of this cause. The argument proceeds upon an erroneous theory, and has no sufficient foundation, either in fact or in law.
Appellant’s petition for a rehearing is overruled, at his costs.
The appellee has also filed a petition for a rehearing of this cause. In this petition it is claimed that we have given an erroneous construction to section 6416, supra, quoted at length in our original opinion, or, rather, to the last provision or sentence of §úch section, which reads as follows: “ No person other than the officials provided for in this law shall be employed by the county commissioners to discover omitted property.” In construing this provision of the statute, in our original opinion, we held, in effect, that the manifest intention of the General Assembly in the enactment of such provision was to prohibit the employment by the county commissioners of persons who made it their special business, for a consideration, “to discover omitted property.” We held, further, that such statutory provision was not fairly open to the construction that the county commissioners were thereby
Appellee’s petition for a rehearing is overruled, at his costs.