Board of Commissioners v. Hicks

Smith, J.

This was a motion for a mandamus, founded on an affidavit filed by Royal S. Hicks, the defendant in error.

The affidavit states that previous to the 28th of February, 1848, the defendant in error, as auditor of Johnson county, performed services for said county in making out tax duplicates, road tax lists, supervisor’s bonds, issuing county orders, &c., to the amount of 100 dollars and 64 cents ; that on said day he presented his account for said services, sworn to by him before a notary public, to the board of commissioners of said county and requested said board to allow and order the payment of said sum; which they refused to do. He therefore prayed for a writ of mandamus to compel said board to allow and order payment- of said account to be made to him.

A rule to show cause was granted, and the commissioner, after a motion to quash the proceedings had been overruled, by way of reply to the facts stated in the affidavit, admitted that the claim mentioned therein had been presented to them, and they had considered that it ought not to be allowed. They further stated that the services for which the claim was presented, were performed by the claimant as clerk of the Circuit Court under an act passed in 1846 abolishing the office of county auditor in Johnson county, and transferring the duties thereof to said clerk, by which act it was made the duty of the commissioners to allow their clerk, (to-wit, the clerk of the *529 Circuit Court,) a sum not exceeding 200 dollars per annum for all the services required of him by said act, and that the full amount they were thus authorized to allow, had been, on the application of the claimant, allowed and paid to him.

The defendant in error demurred to this answer, and the Court afterwards, without further noticing the demurrer, gave judgment that the plaintiff ought to be allowed payment for the services rendered by him as auditor, exclusive of the services performed by him in the capacity of clerk of the board of commissioners, and that an order for the payment of such sum as he was entitled to under the laws fixing the compensation of auditors, ought to have been made on the presentation of his account properly verified. The commissioners were therefore commanded to make such an allowance and order.

The act of 1841, creating the office of county auditor, and prescribing the duties thereto attached, provides that the auditor shall receive for such services as were alleged to have been performed in this case, the compensation demanded. There is also a proviso, that the commissioners shall in no case grant an order to an auditor for his fees but upon an account made out and sworn to by him. Acts of 1841, p. 23. The 8th section of the same act makes the auditor, ex officio, clerk of the board of commissioners, and requires him to keep a record of the proceedings of the board, and to preserve all the documents, books, maps, &c., deposited in his office.

An act approved January 14th, 1846, abolished the office of auditor in the county of Johnson, and required the clerk of the Circuit Court to perform the duties pertaining to it. For this purpose the clerk was invested with the same powers that, by the laws in force, were given to county auditors, and rendered subject to the same liabilities. The 4th section of the act is as follows:

“It shall be the duty of the board .doing county business, to allow their clerk any sum, not exceeding 200 dollars per annum, for the services required of him by the provisions of this act.”

J. Eccles, for the plaintiffs. F. M. Finch, for the defendant.

The defendant in error contends that the compensation provided for in this section refers only to such services as properly appertain to his duties as clerk of the board of commissioners, such as keeping the record of proceedings, &c., while the commissioners seem to have construed the section to mean that the allowance therein mentioned was intended to be a full compensation for all the duties required of the clerk of the Circuit Court whén acting in the capacity of county auditor.

The question thus raised cannot properly be tried on a motion for a mandamus. If the county is indebted to the defendant in error for fees, he might have instituted an action to recover them, or perhaps he might have appealed from the decision of the board of commissioners under the provisions of article 1, c. 7, of the Revised Statutes. At all events, he had a sufficient legal remedy without resorting to a writ of mandamus, and it has already been decided by this Court that in such cases this writ will not lie. Marshall v. The State, Ind. R. 17 (1) .

Per Curiam.

The judgment is reversed with costs, &c.

See 1 Carter's Ind. E. 72.