160 Ind. 455 | Ind. | 1903
The appellants, Adolph Zuelly, Henry H. Bielefeld, and Frederick B. Wichser, describing themselves as resident's and taxpayers of the county of Perry, in the State of Indiana, brought this suit against the appellee Casper and the board of commissioners of said county
The rulings of the court sustaining demurrers to the complaint for the insufficiency of the facts stated, for want of capacity of the plaintiffs to sue, and for a defect of parties plaintiff, are the errors assigned.
The allegations of the capacity in which the plaintiffs sue, and their interest in the subject-matter of the action are followed by the averments that Casper was elected auditor of Perry county at the general election held in November, 1890, and that he duly qualified and entered upon and discharged the duties of the office for the term of four years from and after December 1, 1890; that at the general election held in November, 1894, he was reelected to said office for the term of four years from December 1, 1894, and that he was duly qualified and entered uj)on .and discharged the duties of said office for said term; that' during each of said terms the said Casper received the full amount of the fees and salaries allowed him by law as such auditor; that, under color of his said office of auditor, the appellee Casper, in addition to his lawful fees and salary, taxed and charged against said county divers illegal fees and claims which are itemized and particularly set out, amounting in the aggregate to $3,985; that the said fees and claims were allowed by said board of commissioners, and that said Casper, as such auditor, was by said board authorized to draw his warrants upon the county treasurer for the sum so allowed; that said sums were drawn by and paid to said Casper, who still retains the same, although said moneys were demanded from him by the said board; that more than thirty days before the commencement of this suit the appellants requested said board of commissioners to bring an action against the said Casper for the recovery of
Tbe objection to the complaint is thus stated in tbe brief of counsel for appellees: “The appellees insist tbat under tbe law of tbe State of Indiana, and under tbe facts as disclosed by tbe pleading in this case, tbe board of commissioners of Perry county, Indiana, alone, could bring this action against Martin E. Casper as auditor of said county, and tbat tbe appellants have no legal right to bring tbe suit as it was brought in this casé.” It is further contended in argument tbat tbe appellants can not maintain tbe suit because it does not appear tbat they have suffered a special injury different from tbat sustained'by tbe general public in tbe violation of a duty owing to them as individuals.
The complaint charges and tbe. demurrer admits tbat tbe appellee Casper, as. auditor, wrongfully, received a very large amount of tbe public revenues of tbe county, and tbat be refused to repay this money to tbe county, to which it rightfully belonged. It also appears, and is admitted by tbe demurrer, tbat tbe board of commissioners of tbe county refuses to bring suit to recover tbe moneys so wrongfully withheld. If tbe appellees are correct, tbe unfortunate county, by reason of tbe dishonesty of its officers, is utterly helpless,, and nothing can be done by it or by its taxpayers to redress tbe wrongs to which for eight years it was systematically subjected. If this is tbe law, tbe situation is certainly one to be deplored.
Each of tbe counties of this State is an involuntary subdivision of tbe State, and a corporation for governmental purposes. Its corporate name is tbe Board' of Commissioners of tbe County of-, and such board is tbe legal representative of tbe county, having tbe general management and control of its property and affairs. In most
The objection urged against the right of a taxpayer to maintain a suit on behalf of the public has been presented in many cases in this court in which the relief sought was an injunction against the unauthorized application of the revenues of the county. Such right has uniformly been upheld. In Harney v. Indianapolis, etc., R. Co., 32 Ind. 244, 247, the court, by Erazer, O. I., said: “But it is contended that a taxpayer has no such interest in the funds belonging to the county treasury as will enable him to maintain a suit to prevent unlawful appropriations thereof. We can not regard this question as open to further discussion in this court. It has been a common remedy in this State, and has been sanctioned by repeated judgments here. Lafayette v. Cox, 5 Ind. 38; Oliver v. Keightley, 24 Ind. 514. It has been sanctioned elsewhere. New London v.
The reasons given by the court in support of the right of a taxpayer to maintain an action to enjoin an unlawful disposition of public funds apply with equal force where the wrong has been accomplished, the fund dissipated, and the public officers, whose duty it is to sue for and recover the money, obstinately or corruptly refuse to act. In the case of private corporations, it has often been decided that suit may be brought by a stockholder on behalf of the corporation, against the directors and others for frauds, wrongs, and breaches of trust, and for the recovery from them of money of which the corporation has been de
The legal principle which, under special circumstances, and subject to somewhat narrow restrictions, permits a stockholder to sue for the redress of wrongs or frauds upon the corporation, may, without violence, be extended to the taxpayers of public corporations, where thd wrong is apparent, the equity clear, and the officers charged with the duty of protecting the interests of the taxpayers refuse to act. It is also to be observed that the statutes of this State expressly recognize the right of a taxpayer to interpose by appeal for the purpose of defeating allowances made by the board of commissioners without authority of law. §§7858, ¡7859 Burns 1901, §§5771, 5772 R. S. 1881 and Horner 1901; Fordyce v. Board, etc., 28 Ind. 454; State, ex rel., v. Benson, 70 Ind. 481; Gemmill v. Arthur, 125 Ind. 258; Myers v. Gibson, 147 Ind. 452.
And it is provided in the code of civil procedure that, when the question is one. of a common or general interest of many persons, one or more may sue or defend for the benefit of the whole. §270 Burns 1901, §269 R. S. 1881 and Horner 1901; Tate v. Ohio, etc., R. Co., 10 Ind. 174; Pomeroy, Remedies & Remedial Rights (2d ed.), §§388-390.
The precise question before us has been decided by the supreme court of Wisconsin. In Land, etc., Co. v. McIntyre, 100 Wis. 245, 75 N. W. 964, 69 Am. St. 915, the action was brought to charge the defendant as trustee for Vilas county for moneys claimed to have been corruptly
Again, in Webster v. Douglas County, 102 Wis. 181, 77 N. W. 885, 72 Am. St. 870, the doctrine stated in
The case brought here by this record is in the nature of a suit in equity to charge the appellee Oasper for moneys belonging to the county wrongfully obtained by him, and now unlawfully withheld. The complaint shows (although with less fulness and particularity than could be wished) that the board of commissioners was requested by the appellants to bring an action for the recovery of the said moneys, and that they refused to do so. Under these circumstances, we are of the opinion that the appellants, as taxpayers, had such an interest in the public funds wrongfully withheld and appropriated by the appellee Oasper as authorized them to institute an action in their own names for the benefit of themselves and all others having a common interest with them in the restitution of the said revenues; the board of commissioners being joined as a defendant.
RTo question is made by the appellees as to the illegality of the allowances made to Oasper which are sought to be recovered in this suit. It is perfectly clear that many of them were wholly unauthorized, and it is not necessary for us to consider them in detail.
The complaint was .sufficient, and the court erred in sustaining the demurrers to it. Judgment, reversed, with directions to overrule the demurrers to the complaint, and for further proceedings in conformity to this opinion.
Jordan, J., did not participate in this decision.