Heizer v. Yohn et al.

court to decide, and not of fact for the jury. The judgment must be reversed, with costs."

We are referred by counsel for the appellees to the case of Carson v. The State, 27 Ind. 465, and it is insisted that that case is decisive of the point involved here. But we do not think so. In the opinion in that case the learned judge says: "The main question involved in the case at bar is, did the town of Hanover, when it became incorporated under the general law, succeed to the rights of the civil township in which it is situated, in the management and control of the public schools within its territorial limits?"

If this was the main question in the case, then there was no question involved as between the school township and the town of Hanover. The civil township and the school township, though they have the same limits, are not the same corporation. I G. & H. 637, sec. 4, ånd 1 G. & H. 570, supra. And if the controversy in that case related to "the management and control of the public schools" only, it would seem that no question was involved covering the title to property. It is further said in that opinion that "under the constitution and laws of this State, school property is held in trust for school purposes by the persons or corporations authorized for the time being by statute to control the same. It is in the power of the legislature, at any time, to change the trustee." Now whatever may have been the question in that case, in the one under consideration it is not a question with relation to the change of trustee merely, but it is a change of the cestui que trust, or beneficiaries, or the majority of them, which is claimed.

If that case was intended merely to decide that the legislature might at any time change the trustee, then it is not in point here.

Governed by the general principles of law, in the light of the authorities to which we have referred, we have arrived at the conclusion that the legal title to the school-houses and grounds in question remains in the school township of Center, and that the defendant was improperly enjoined from

Wright v. McGinnis.

selling the same. If there shall be discovered any ground on which an equitable division of the proceeds of the property, when sold, can be effected; or if the corporations interested can agree upon such division, this opinion is not intended to prevent such an adjustment.

The judgment is reversed, with costs, and the cause remanded.

L. Barbour and C. P. Jacobs, for appellant. 7. S. Harvey, for appellees.

WRIGHT V. MCGINNIS.

COUNTY AUDITOR.-Per cent. on School Fund.-Where a county auditor performs duties in the management of the school funds, and the apportionment cannot be made until his successor takes the office, he is entitled to a proportionate amount of the per cent. allowed on the disbursement of the funds.

APPEAL from the Marion Circuit Court.

WORDEN, C. J.-Action by the appellant against the appellee. Demurrer to the first paragraph of the complaint sustained. Finding for the defendant on the second. New trial refused, and judgment.

The following is the case made: The appellant was the auditor of Marion county, whose term of office expired November 2d, 1867, when he was succeeded by the appellee.

On the 10th of October preceding the expiration of the appellant's term of office, he made his report to the state superintendent of public instruction, of the amount of school revenue for apportionment and distribution, in accordance with sections 110, III, of the school law. 3 Ind. Stat. 462. Owing to delay on the part of the superintendent, the funds were not apportioned, and hence not disbursed until after the expiration of the appellant's term of office, when the disbursement was made by the appellee. The four per cent. on the disbursement amounted to the sum of two hundred and nineteen dollars and sixty cents, all of which

Wright v. McGinnis.

the appellee drew from the county treasury on his own warrant or warrants therefor. The appellant has received nothing for the services rendered by him in the management of the fund thus disbursed, and he brings this action to recover the money, or some part of it, thus received by the appellee.

Section 107 of the statute above cited provides, in addition to two specific items not involved here, that "county auditors shall receive for their services in managing the school funds, four per cent. on all disbursements of interest," to be paid, on disbursements being ascertained, in the same manner and out of the same revenue as for other services.

There are many duties required of the county auditors, not necessary to be here enumerated, in the management of the school funds, besides the mere semi-annual disbursement thereof. These duties were all performed by the appellant during his official term, including the report to the superintendent, leaving nothing to be done by his successor, the appellee, in relation to the sum to be disbursed, but simply to disburse the same according to the apportionment made by the superintendent.

The law, it will be seen, does not give the auditors four per cent. for making the disbursements, but four per cent. on the disbursements for their services in managing the funds. The disbursements are referred to as furnishing the measure of compensation merely. To be sure, the amount of the percentage cannot be ascertained or paid until the amount to be disbursed is ascertained; but when ascertained, it furnishes, in connection with the two specific items, the measure of compensation for all the auditor's services in the management of the fund.

As the appellant performed services in the management of the funds, we see no reason why he should not have compensation therefor.

Although the laborer who enters the vineyard at the eleventh hour may, under some circumstances, be entitled to as much as he who has borne the burthen and heat of the

Wright v. McGinnis.

day, yet we know of no authority for giving him compensation for the entire labor performed, to the exclusion of him who worked the twelve hours.

Each of these parties is entitled to some compensation. The appellant cannot claim it all, because the appellee had a duty to perform in relation to the fund after he came into the office. It was no fault of his that the fund had not been disbursed before his term commenced.

The amount received by the appellee ought to be apportioned between the parties, in accordance with the amount of services rendered by each. If this cannot be agreed upon, it can be settled in the same manner as other disputed questions of fact.

We understand the appellee to claim that as there is no statute which authorizes an apportionment of the compensation, none can be made. Perhaps, if this position is tenable, the appellant would be entitled to the whole sum.

But we think no statute authorizing an apportionment is necessary. Each auditor who performs services in managing the funds is entitled to compensation. But the whole compensation cannot exceed the amount fixed by law; and when the services are rendered by successive auditors, the compensation must be apportioned between them in the manner above stated.

The appellee makes the point, however, that this action will not lie against him, but that the appellant must take his remedy against the county. We are of a different opinion. The appellee has received money which rightfully belongs to the appellant, and an action will lie to recover it. Chit. Con. 7 Am. Ed. 601, et seq. and notes.

The demurrer should have been overruled to the first paragraph of the complaint, and a new trial should have been granted as moved for.

The judgment is reversed, with costs, and the cause is remanded.

D. V. Burns, C. Hamlin, and G. S. Wright, for appellant. F. Hanna and F. Knefler, for appellee.

37 424

128 63

The Marion Township Union Draining Company et al. v. Norris et al.

THE MARION TOWNSHIP UNION DRAINING COMPANY ET AL v. NORRIS ET AL.

DRAINING ASSOCIATION.-Liability of Members.-Judgment.-Where the members of a draining corporation were sued, with the corporation, for a liability incurred by the company, and the individual members composing the corporation demurred to the complaint, and the demurrer was overruled, and judgment was rendered against the defendants, to be first collected of the assets of the corporation;

Held, that the members of the corporation could not complain of the ruling, as they were not injured thereby, even if their liability was only contingent and secondary.

SAME.-Answer.-Execution.-Where the complaint alleged that the corporation had no assets subject to execution, an answer that it had a schedule of assessment of benefits upon land and real estate affected by the construction of its work, duly recorded, etc., exceeding the amount of its liability, was no defence, as such assessments are not subject to an ordinary execution.

APPEAL from the Boone Common Pleas.

BUSKIRK, J.-This was an action in the Boone Court of Common Pleas, wherein the appellees were plaintiffs, and the appellants were defendants, for the breach of a contract between the appellees and the Marion Township Union Draining Company, a body corporate, organized and existing under the act of June 12th, 1852, I G & H. 303, for the construction and excavation of a drain, for which the company agreed to pay the appellees, as the work proceeded, at the rate of eighteen cents per cubic yard of excavation, and two dollars per day for cleaning the line of the drain. The appellees sought to recover for work done in part performance of this contract, as well as for damages resulting from an abandonment of the contract by the company, and a refusal by the company to pay for the work as it proceeded, whereby the plaintiffs were compelled to abandon the work.

Peter S. Moore and the other appellants, except the draining company, were made parties defendants, as members of the company at the time of the execution of the contract, and afterward while the work was being done. The complaint avers that the company has no property subject to execution.