Board of Commissioners v. Chitwood

Gookins, J.

Chitwood and Porter presented a claim to tbe board of commissioners of Fayette county for medical services rendered by them to a pauper. The board refused to allow the claim. Erom that decision, they appealed to the Circuit Court, where there was a trial by jury, verdict for the plaintiffs, new trial refused, and judgment. The record contains the evidence.

It is assigned for error that the cause was submitted to a jury, when it should have been tried by the Court. There was no error in this. Section 36, p. 230, 1 R. S. *505 1852, provides that an appeal from á decision of the board of commissioners shall be tried as an original cause; but it does not provide that it shall be tried in the same manner as by the commissioners. The board of commissioners, sitting as a Court, has no jury, and the allowance of claims by them is a special proceeding; hut when a cause is pending in a court which has a jury, their opinion may be taken on any question of fact arising in the cause. Lapreese v. Falls, 7 Ind. R. 692.— Kemp v. Smith, id. 471.

A certificate was admitted in evidence for the plaintiffs against the defendants’ objection, as follows:

“State of Indiana, Fayette county. I, Augustus FL. Hotchkiss, clerk of the board of trustees of Connersville town.ship in said county, do hereby certify that the above account was duly presented to the board of trustees of said township, acting as overseers of the poor, and was by said board declared correct, and the same is recommended to be paid by the board of commissioners of said county. In testimony whereof, witness the name of the president of said board, attested by the clerk, this 7th day of June, 1854. Cr. Straclley,!res’t. Attest: A. H. Hotchkiss, T’p. Clk.”

This certificate does not purport to be a copy of any order of the board of trustees, taken from their records, but still, we think it was competent evidence for one purpose, at least. Each member of that board is, ex officio, an overseer of the poor. 1 E. S. p. 401, s. 2. The Board of Commissioners, §c., v. Jones, 7 Ind. R. 3. The certificate tended to show that the services were rendered at the instance of at least one member of the board, and not voluntarily. Whether it was sufficient for that purpose we do not decide.

The defendants offered in evidence a record of their board, made at a special meeting held on the 31st of December, 1853, which recited that they had assembled at the call of the auditor, for the purpose of contracting for the services of a physician for Gomevsuille township, to give such attendance upon the paupers of said towrn- *506 ship as the overseers of the poor might deem necessary; and an order for the appointment of Ur. S. Vance for one yeaY> would accept the appointment, for the sure of 100 dollars, and would agree to render such services as the paupers and prisoners in jail might need; also the acceptance of Ur. Vance of their proposal.

The plaintiffs objected to this evidence on the ground that there was no legal authority for the board of commissioners to hold such special session, and that the order was, therefore, void; also, that they had no power to appoint a physician for one township of a county.

The board of commissioners is a court of special and limited jurisdiction. It holds four terms a year, on the first Mondays of March, June, September, and December. 1 R. S. p. 225, s. 6. It is required to keep a record of its proceedings. Id. ss. 7, 14. It is not authorized to meet at any other time, and can only transact business as a board when in session. Archer v. The Board of Commissioners, &c., 3 Blackf. 501. — Campbell v. Brackenridge, 8 id. 471. "We are, therefore, of opinion that the order relied on, unsupported by any evidence that the contract had been confirmed by the board when legally in session, as by their adopting it, or ordering payment upon it, was not valid, and was properly excluded.

The other objection to the contract, we think, is not well taken. The commissioners are required to contract with one or more skillful physicians to attend upon prisoners and paupers in the county asylum; and they may contract with physicians to attend upon the poor generally, in the county. 1 R. S. p. 101, s. 8. They are authorized to employ, not one physician, but physicians; and it would be unreasonable and inconvenient if they were not permitted to employ one for one part of the county, and another for another part.

The defendants offered to prove by Piper and Ilinkson, two of the overseers of the poor, that the certificate given in evidence was obtained from the trustees by fraud. They stated that they had authorized their .clerk to make the certificate, which was signed by their presi *507 dent and clerk. The alleged fraud consisted in their representation that they wished'the certificate solely the purpose of getting their claim before the board of commissioners. On the plaintiffs’ objection, this testimony was excluded. The testimony, if given, would have been no proof of fraud. ' There is no pretense that they were deceived as to the contents of the certificate. Its-purport was open and apparent, and it does not seem to have been put to any fraudulent or illegal use.

B. F. Glaypool and N. Trusler, for the appellants. J. S. Beid and S. Heron, for the appellees.

' It is assigned for error that the Circuit Court should have granted a new trial, because the proof was insufficient to sustain the verdict. This error we think well assigned. The certificate above, recited seems to have been regarded as ’ evidence of the correctness of the account, as no other proof was offered on that subject. We have shown that, as the act of one trustee, it was evidence for a different purpose. The civil township is a corporation, represented by a board of trustees, who are required to keep a true record of all their proceedings. 1 R. S. p. 495, s. 9. They, like the board of commissioners, can only speak by their record. The certificate given in evidence did not purport to be a transcript from that record. Whether, as a board, they have any power to pass upon claims, it is not necessary to decide. So far as appears, they have not attempted to do so. If they have any power to act upon claims, their action is evidently not conclusive. The commissioners are the guardians of the county treasury, and it is their duty to protect it. There was no proof whatever before the jury of the correctness of the plaintiffs’ account. Consequently the verdict was wrong.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.