Board Of Com'rs Of Posey Co. v. Harlem and another.
(Supreme Court of Indiana. November 3, 1886.)
1. Practice — Appeal — Record —
Motion.
A motion to dismiss a cause, or to strike out part of the evidence,
presents no question on appeal unless made part of the record by bill
of exceptions or order of court.
2. Counties — County Commissioners —
Jurisdiction — Claims Against County — Appeal.
The board of county commissioners has original jurisdiction over a
claim against the county for necessities furnished the poor on orders
of the township trustee, and an appeal lies from an order of the board
disallowing such claim to the circuit court.
3. Poor And Poor Laws — Evidence —
Orders Of Township Trustee — Action Against County.
On the trial in the circuit court of a claim against a county for
necessaries furnished the poor upon orders of the township trustee,
such orders are admissible in evidence, in connection with proof
aliunde that the supplies had actually been furnished to those lawfully
entitled thereto.
Appeal from Posey circuit court.
Spencer, Hovey & Menzies, for appellant.
Appellees' claim is for supplies and
money furnished the permanent and transient paupers of Black township,
Posey county, on the orders of George D. Rowe, township trustee.
Appellees should have presented their claim to the trustee, as overseer
of the poor; the trustee should have presented same, if correct, to the
board, and had same audited and allowed him as a claim; whereupon, if
allowed, an order could have been drawn on the county treasurer for the
sum allowed. Section 6087, Rev. St., was enacted for this purpose, and
is the only provision in the law by which claims of the class under
consideration can be passed upon. If this position be correct, neither
the board of commissioners nor the court below had or could have
assumed jurisdiction, and appellant's motion to dismiss should have
been sustained.
The second part of the motion to dismiss
is based upon the proposition that no township trustee, acting as
overseer of the poor or otherwise, has any power to issue orders to
persons for money against the county, and binding upon it. This court
has, in a late decision, ruled that a township trustee has no authority
to borrow money, or execute notes in the name of a school township.
Union School Tp. v. First Nat. Bank of Crawfordsville, 102 Ind. 464;
S.C. 2 N.E. Rep. 194.
If the trustee, as agent of the
township, cannot exercise such powers, by what right can it be claimed
that he can bind the county, as overseer of the poor, in borrowing
money or issuing orders, either for money or supplies? Where, in the
statutes, is the grant of the power?
The law, as applied to the facts adduced
on the trial of this cause, is against appellees' right of recovery,
and the motion for a new trial should have been granted. It is in
evidence that a county asylum existed. Section 6094, Rev St., provides
that the permanent paupers shall be removed there. Rowe, the trustee,
admits that he knew of the asylum. Sometimes he removed paupers there;
other times he did not. His excuse for not removing them was the
distance and expense. These, we insist, were reasons for the appellant
to consider, and that the lesser official could not bind his superior
by usurping the discretion lodged with the county agents. In the law, a
certain and simple way is marked out for all cases, which neither
necessity nor law will allow to be deviated from, if the orders were
issued without authority of law, reading them in evidence was error,
and the motion to strike out the evidence should have been sustained.
The position assumed by appellees, and ruled by the court below, would
make an autocrat of every overseer of the poor. He would stand as the
supreme arbiter of the public revenues. His fiat would reach the pocket
of every tax-payer. It cannot be that the general assembly ever gave
such vast authority to such an insignificant official. It was never
intended to vest him with discretionary power.
J.W. French, D. O. Baker, and W. P. Edson, for appellees.
The position, assumed by the appellant,
that the court below had no jurisdiction of the cause of action because
the claim of the appellees was not presented to the board of
commissioners by the overseer of the poor as a part of his accounts for
auditing and allowance, is not tenable.
The party to whom the claim is due may
present it to the board, and an appeal lies therefrom to the circuit
court. Board Com'rs Huntington Co. v. Boyle, 9 Ind. 296; Board Com'rs
Morgan Co. v. Seaton, 90 Ind. 158; Board Com'rs Howard Co. v. Jennings,
104 Ind. 108; S.C. 3 N.E. Rep. 619. Sections 6087 and 6088, Rev. St.
1881, cited by the appellant, do not require, either expressly or by
implication, that all claims on account of the poor shall be presented
by the township trustee to the board of commissioners to be by such
board audited and allowed before they shall become binding on the
county.
The proposition of the appellant, that
no township trustee, acting as overseer of the poor or otherwise, has
any power to issue orders for money, binding on the county, is not
sustained by the statute. See sections 6069, 6071, 6089, 6094, Rev. St.
1881; Board Com'rs Howard Co. v. Jenninns, 104 Ind. 108 ; S.C. 3 N.E.
Rep. 619; Wallis v. Johnson School Tp., 75 Ind. 369 : Com'rs Morgan Co.
v. Holman, 34 Ind. 259; Miller v. White River School Tp., 101 Ind. 503;
Bicknell v. Widner School Tp., 73 Ind. 501; Reeve School Tp. v. Dodson,
98 Ind. 497; Pine Civil Tp. v. Huber Manuf'g Co., 83 Ind. 121; Board
Com'rs Bartholomew Co. v. Wright, 22 Ind. 189. Appellees' cause of
action being for necessaries furnished the poor on orders of the
township trustee as overseer of the poor, such orders were admissible
in evidence to prove that the items of their account had been furnished
by them at the request of such overseer.
Howk, C. J. The record of this cause
shows that prior to the twenty-fourth day of March, 1884, appellees,
Michael and Jacob Harlem, partners under the firm name of M. Harlem
& Son, presented to the appellant for allowance
an itemized account for supplies furnished by them, on the orders of
the trustee of Black township, in Posey county, to the poor of such
township and county. The claim was disallowed by appellant, and the
claimants, M. Harlem & Son, appealed to the circuit court of the
county. There the cause was tried by the court, and a finding was made
for appellees in the sum of $500.50, and, over appellant's motion for a
new trial, judgment was rendered accordingly. Errors are assigned here
by appellant, which call in question the overruling (1) of its motion
for a new trial; and (2) of its motion to dismiss appellees cause of
action.
In the natural order, and, indeed, in
the order in which appellant's counsel have presented and discussed
these alleged errors, the error of the court in overruling its motion
to dismiss appellees' cause of action herein
must first be considered. This motion appears to have been in writing,
and therein appellant moved the court to "dismiss this cause, as the
evidence shows that the court has no jurisdiction over the
subject-matter in controversy." In this same written motion appellant
also moved the court "to strike out from the evidence all the orders
offered in evidence signed by Geo. D. Rowe, trustee." The rulings of
the trial court on each of these motions have been elaborately
discussed by appellant's counsel in their brief of this cause. Neither
the motions, nor the rulings of the court thereon, have been made parts
of the record of this cause, either by a bill of exceptions or by an
order of court. The questions discussed by appellant's counsel,
therefore, are not presented here for our consideration or decision by
the second alleged error. Section 650. Rev. St. 1881; Fryberger v.
Perkins, 66 Ind. 19; Williams v. Potter, 72 Ind. 354; Shields v.
McMahan, 101 Ind. 591; Kleespies v. State, 106 Ind. 383; S.C. 7 N.E.
Hep. 186.
We recognize the rule, however, that
"the objection to the jurisdiction of the court over the subject of the
action" is not waived by any failure to object or except, or to file a
bill of exceptions, on that ground. Section 343, Rev. St. 1881. But the
"subject-matter in controversy," in the case in hand, was a claim
against the county of Posey for necessary supplies furnished by
appellees to the poor of such county, on the orders of the trustee of
Black township therein. It will not do to say, we think, that the court
below had "no jurisdiction over the subject-matter in controversy"
herein. By the express provisions of sections 5758, 5759, and 5760,
Rev. St. 1881, in force since May 31, 1879, the board of commissioners
of Posey county had exclusive original jurisdiction of appellees' claim
against such county. This is settled, not alone by the plain letter of
the statute, but also by our decisions. Pfaff v. State, 94 Ind. 529;
State v. Board, etc., 101 Ind. 69; State v. Morris, 103 Ind. 161; S.C.
2 N.E. Rep. 355. In section 5769, Rev. St. 1881, also in force since
May 31, 1879, being section 3 of the same statute which gives the board
of commissioners of each county in this state exclusive original
jurisdiction of any claim against
such county, it is provided as follows; "Any person or corporation
feeling aggrieved by any decision of the board of county commissioners,
made as hereinbefore provided, may appeal to the circuit court of such
county, as now provided by law."
In the case now before us appellee's
claim against Posey county was duly presented to the appellant for
allowance; the claim was disallowed and rejected by appellant; and the
appellees, feeling aggrieved by such decision, appealed therefrom to
the circuit court of Posey county. Upon these facts, shown by the
record, there is no room for even a doubt, as it seems to us, of the
full and complete jurisdiction of the court below over this suit, and
the subject-matter thereof.
On the trial of this cause, the court
found tbe facts to be substantially as follows: (1) All the goods and
money mentioned in plaintiffs' bill of particulars were furnished by
them, upon the orders of George D. Rowe, trustee of Black township, in
Posey county, and the goods were of the value charged therefor. (2)
George D. Rowe was, at the time of drawing such orders, the duly
elected and qualified trustee of Black township, and acting as such.
(3). All the orders, numbered from 1 to 33, inclusive, were for money
to be used; for the purpose of defraying the expenses and
transportation of certain persons to their homes in other counties of
this state, or in other states. (4) In each of these cases the trustee,
as overseer of the poor, had made reasonable inquiry, and found, and in
good faith believed, such persons to be in need, and either sick or in
distress, and furnished sums for transportation, as being, in his
judgment, the best mode of affording to them temporary relief, (5)
Fraud never being presumed, the court found that the evidence did not
show that any of the orders, either for goods, money, or
transportation, were issued, either corruptly or fraudulently, by said
township trustee. (6) Upon and after examination and inquiry by said
township trustee, all of the remaining orders were issued for goods,
either to transient paupers or resident poor persons, who at the tirae
svere unable to provide for themselves, and were found by said trustee
to be in need of temporary relief. (7) Owing to the distance of the
county asylum for the poor from Black township, and especially from Mt.
Vernon, where most of these persons were found, and the cost, between
three dollars and four dollars, of conveying any one of such poor
persons to the county asylum, the court found that it would have been
inexpedient to have sent such persons to said asylum, or that there was
no abuse of the discretion given to the township trustee, as overseer
of the poor, in granting the persons mentioned, at their places of
residence, the temporary relief afforded by him through his orders on
the plaintiffs. Upon the foregoing facts, the court concluded,
as matter of law, that the appellant was justly and legally liable to
appellees for the full amount of their claim herein. In this
conclusion, we think there was no error.
The facts found by the court were fully
and fairly sustained by the evidence appearing in the record. In
section 6066, Rev. St. 1881, in forcesince May 6, 1853, the township
trustees of the several civil townships of this state are designated as
"overseers of the poor" within their respective townships, and are
required to perform all the duties, with reference to the poor therein,
that may be prescribed by law. In section 6071, also in force since May
6, 1853, It is provided that "the overseer of the poor in each township
shall have the oversight and care of all poor persons in his township
so long as they remain a county charge, and shall see that they are
properly relieved and taken care of in the manner required by law." So,
also, in section 6078 of the same statute it is further provided that,
"whenever any person entitled to temporary relief as a pauper shall be
in any township in which he has not a legal settlement, the overseer of
the poor thereof may, if the same be deemed advisable, grant such
relief by placing him or her temporarily in the poor-house of such
county," etc. In section 6089 of the same act it is made the duty of
the overseer of the poor, on complaint to him that any person not an
inhabitant of his township is lying sick therein or in distress, and
without friends or money, so that he or she is likely to suffer, to
examine into the case, and grant such temporary relief as the nature of
the same may require. In construing the various provisions of our law
for the relief of the poor, two things are plainly observable, namely:
(1) The legislative intention that thepoor of each county and the
transient poor shall, in every event, receive all necessary relief, at
the expense of the proper county; and (2) the nature and extent of such
relief, in each particular case, is largely intrusted to the sound
discretion and practical judgment of the township trustee, as overseer
of the poor.
Orders were issued by the township
trustee to the appellees, in the case under consideration, directing
them to furnish the persons named therein the money or supplies which
the township trustee had deemed it advisable to give such persons to
relieve their necessities. Complaint is made by appellant's counsel
that the trial court erred in admitting these orders in evidence. Of
course, the orders were not binding or conclusive upon either the
township trustee or the county; but proof having been made aliunde that
the money or supplies mentioned in theorders had; been furnished by
appellees to the persons named therein, and that such persons were
proper recipients of and lawfully entitled to the relief furnished by
appellees upon such orders of the township trustees, we think that the
orders were admissible in evidence ?? parts of the transaction.
Bloomington School Tp. v. National, etc., Co., 107 Ind. 48, S.C. 7 N.E.
Rep. 760, and cases cited.
In Commissioners, etc., v. Holman, 34
Ind. 256, it Is said: "The question as to the necessities of the
persons relieved is a matter for the determination of the trustee; and
we think, if the people call competent and faithful persons to the
discharge of the duties of this office, there will be little cause of
complaintunder this rule. Should there be connivance or fraud between
the trustee and the claimant, this, of course, would present a
different question." To the same effect, substantially, are the
following cases: Conner v. Board, etc., 57 Ind. 15; Board, etc., v.
Seaton, 90 Ind. 158; Board, etc., v. Jennings, 104 Ind. 108; S. C. 8
N.E. Rep. 619.
Whether it will be better, in any case,
to remove a resident poor person to the county asylum for the poor as a
permanent charge, or to afford him temporary relief merely, is also a
question, we think, for the determination of the proper township
trustee; and, in the decision of this question, he should take into
consideration the best interests of the public, as well as those of
such poor persons. In the case at bar, the court expressly found that
the dealings between the township trustee and the appellee were in good
faith, and free from either fraud or corruption.
Upon the whole case, as presented by the
record, we are of opinion that the court committed no error herein
which will authorize or justify the reversal of the judgment. The
judgment is affirmed, with costs.
Source: "The Northeastern Reporter"
By West Publishing Company, Published by West Publishing Co., 1886,
Item notes: v.8 (1886),
Original from Harvard University, Digitized Aug 3, 2007 (accessed: 21
Dec 2008)
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