The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1900-07-18
ASSESSORS EXPENSES.
Opinion by Judge Fox which VIII Be
Carried to the Supreme Court.

Special to the indianapolis Journal.
RICHMOND, Ind, July 1.-THE Supreme
Court will be called upon to decide the case
upon which Judge Henry C. Fox, of the
Wayne Circuit Court, to-day handed down
an opinion. This is the case of James p.
Reid, Wayne township assessor, against
A. s. Reid, Wayne county auditor, TO COM
pei the payment of about $500 claims in
excess of the appropriation allowed by the
County Council for the assessing work. The
assessors went before the County Council
on two occasions asking for the extra
allowance, but were refused. Mandamus
proceedings were then brought against the
auditor to compel the payment of the
claims, twelve other townships in the coun-
ty having similar claims. The auditor filed
a motion to quash the writ of mandamus,
alleging both 1t and the complaint to be
faulty In not setting forth facts sufficient
to constitute a cause of action. This motion
Judge Fox sustains. However. the opinion
is wholly favorable to the assessor, and the
decision against that official is one of legal
necessity, the court says, owing to the
lack of sufficient averments. Not only will
this case be appealed, but another will be
brought. This will be a mandamus pro-
ceeding against the County Council to COM
pei it TO make the appropriation to pay the
excess claims. An important feature of
Judge Fox's decision is the portion in refer
ence to the duties of the County Council.
On this point he says:
This brings us to the consideration of
the question as to whether this case comes
within the purview of the act passed by
the last General Assembly, generally known
as the county reform law. If 1T does,
then the motion to quash must be sustained
for the want of proper averments in the
complaint. The statute has not as yet
been judicially construed as far as its APP
plication Is concerned to cases Xix the one
under consideration. The provisions of this
statute are anomalous and with little TO
commend them. Still, as long as ii re-
mains upon the statute book, II is the law
of the land. The County Council created
by this statute is clothed with power to
exercise, but while this is true, ii has
duties to perform as well, which 1T cannot
disregard. This County Council is a statu-
tory creation; SO likewise are the powers
with which IL is invested. 1t Will
be observed that a township assessor is
required. among other things. to estimate
the number of avs that will be required
by him In which to perform his duties for
the ensuing year. This is done for the
purpose of enabling the Council to fix the
rate of taxation that Will be necessary to
DTOUutc tie dilODnl VI ltNCliuC ItQuiltu W
pay for such service. In addition to the
duty of providing the requisite revenue, it
is made the duty of the County Council to
appropriate the amount necessarily re-
quired to meet the expenses of the asses
sor's office, including the amount that he
will be entitled to receive for services.
With the amount to which township as
SCISSORS are entitled as compensation for
the days they are actually employed in
the duties of their office the County Coun-
Gil has nothing to do except TO provide for
it's They are without discretion
in the premises, for the matter is fixed by
statute, and thus their duty is made plain.
The number of days for which the assessor
will be entitled to receive compensation
will be fixed by the auditor when he audits
the assessors account. . In cases,
however, where definite amounts are fixed
by statute to be expended In the public
service or where agencies are provided for
fixing such amounts other than the County
Council, then the council are vested with
no discretion In the premises. They have a
plain duty to perform, and that is to make
proper and ~dequate provision for the pay
ment of such amounts. If the
power and discretion of a County Council
was intended to apply in cases like the
present, then, indeed, would their power
be autocratic. The whole machinery Of the
government. as far as a county Is con-
cerned, would be in their hands. Courts
would be unable to impanel juries for
the administration of justice unless the
council willed and permitted it. Clerks.
other county officers could open their Of
fees and discharge their duties only when
the County Council so decreed. Such was
never the intention of the General Assem-
bly,; IL is not the law, ard the courts will
so hold"