English and Others v. Smock and Others.

The third objection is, that the law requires the bonds to be payable in ten years, and that the order provides that they shall be payable at the end of fifteen years, subject to be redeemed at the pleasure of the county after seven years. We have given this objection mature consideration. There is great plausibility in the argument made. The loan cannot exceed one per centum of the assessed valuation of the real and personal property of the county. The interest on the loan is to be paid by a distinct and specific levy as provided. in section 22. Section 21 requires a levy of one-tenth of one per cent. of the taxable property. If the taxes levied were all collected, the bonds could be paid in ten years. But there is no plain and express requirement of the statute that the bonds shall be payable in ten years, and the implication arising from the language of the statute is not plain and strong enough to justify us in so holding. Besides, the provision for the creation of a sinking fund tends strongly to show that it was the intention of the legislature to leave to the sound discretion of the commissioners, the time within which the bonds should be paid, and, in the absence of fraud or bad faith, we have no power to enjoin acts that are within the power conferred, and have been performed in the exercise of a sound discretion.

The fourth specification of causes why the court should enjoin the board of commissioners is, that reasonable taxation will supply sufficient funds to complete the asylum for the poor and construct the court house, without resorting to a loan; that the taxable property of the county amounts to forty millions, and that thirty cents upon the one hundred dollars will yield sufficient funds for the contemplated public buildings.

The learned attorneys for the appellants make the following answer to this objection: "There is no allegation that the board of commissioners are acting fraudulently or corruptly; indeed, it is admitted, in argument, that they are acting honestly, but it is claimed that they are mistaken in their policy. Now, this is a singular appeal to make to

English and Others v. Smock and Others.

the court. The law confides this matter exclusively to the board of commissioners, and they have the means of ascertaining all the facts necessary to form their judgment and shape their policy. They know the wants of the county and the amount of necessary expenditures; they are supposed to know whether reasonable taxation will afford sufficient funds to construct and complete these public buildings. They know the legacy of expense the war has entailed upon us for the support of widows and orphans and poor families, and how long these extra expenses are likely to continue."

In support of the above argument we refer to the following authorities. The Court of Appeals in the State of New York, in the case of Porter v. Purdy, 29 N. Y. 106, say, "When in special proceedings in courts, or before officers of limited jurisdiction, they are required to ascertain a particular fact, or to appoint persons to act in such proceedings, having particular qualifications, or occupying some particular relation to the parties or the subject matter, such acts, when done, are in the nature of adjudications, which, if erroneous, must be corrected by a direct proceeding for that purpose; and if not so corrected, the subsequent proceedings which rest upon them are not affected, however erroneous such adjudications may be."

This court, in the case of The Evansville, &c., R. R. Co. v. The City of Evansville, 15 Ind. 395, say, "It is a well settled principle, that when the jurisdiction of an inferior court depends upon a fact which such court is required to ascertain and settle, by its decision, such decision is conclusive." Brittain v. Kinnaird, 1 Brod. & B.422; Betts v. Bagley, 12 Pick. 572; Martin v. Mott, 12 Wheat. 19; Vanderheyden v. Young, II Johns. 150; Birdsall v. Phillips, 17 Wend. 464; Ex Parte Watkins, 3 Pet. 193; The People v. The City of Rochester, 21 Barb. 656. The case of Dequindre v. Williams, 31 Ind. 444, and the decisions there referred to and discussed are much in point.

The power and authority of the board of commissioners to act in the premises depended upon whether the money was required for the purposes named in section seventeen, and

English and Others v. Smock and Others.

whether the money could be raised by reasonable taxation; and these facts having been found and settled, the decision is conclusive upon us in this proceeding.

We therefore hold that the order of the board of commissioners was in all things valid, except in providing for the payment of the interest semi-annually; and for that reason the judgment of the court below in granting the injunction must be affirmed. The foregoing opinion presents the views of a majority of this court, PETTIT, C. J., disents from our reasoning and conclusions, and will file a separate opinion stating the grounds of his dissent.

The judgment is affirmed, with costs.

PETTIT, C. J.-This was a complaint against the Board of Commissioners of Marion county to enjoin them from issuing four hundred thousand dollars in bonds of the county and putting them on the market, to raise money to build a new court house and to finish an asylum for the poor already commenced. The statute fully authorizes the board to make this loan. 3 Ind. Stat. 131. The grounds upon which the injunction is asked are technical and for supposed slight variations from the strict letter of the directions of the law in the proceedings of the board.

Where discretionary powers are given to a board, corporation, or person, for public purposes, an injunction will not be granted to forbid their exercise unless a gross departure from the law granting the power is shown, or fraud or corruption is charged. Auburn, &c., v. Douglass. 12 Barb. 553; Burnham v, Kempton, 44 N. H. 78; Roath v. Driscoll, 20 Conn. 533; Kekewich v. Marker, 5 Eng. L. & Eq. 129; The City of Lafayette v. Bush, 19 Ind. 326.

In Mooers v. Smedley, 6 Johns. Ch. 28, the Chancelor said: "I cannot find by any statute, or precedent, or practice, that it belongs to the jurisdiction of chancery, as a court of equity, to review or control the determination of the supervisors in their examination and allowance of accounts as chargeable against their county, or any of its towns, and in

English and Others v. Smock and Others.

causing the money so allowed to be raised and levied. There was no allegation of fraud or corruption in the case. The most that could be said was that they made an erroneous determination."

If the legislature has entrusted the exercise of the power to the sole judgment and discretion of a particular person, or body of individuals, no court is authorized to interfere. with or control that discretion, provided it is exercised in good faith. See cases cited in 3 Abbott's N. Y. Dig. 362.

"An injunction cannot be granted to restrain the acts of officers of state, unless they are violating the plain and manifest intent of the statute under which they are acting, or are proceeding in bad faith." Hartwell v. Armstrong, 19

Barb. 166.

In Haight v. Day, 1 Johns. Ch. 18, the Chancellor uses the following language: "When a statute gives to a commissioner a discretion in a particular case, and for a special purpose, I doubt exceedingly whether a mistake of judgment, in that case, can be corrected. The Supreme Court seemed to think it could not, in the case of Lawton v. The Commissioners of Highways, 2 Caines R. 182."

"The court will not issue an injunction to restrain public officers from issuing bonds as they are authorized by law, upon a mere apprehension that the public officer who is designated to receive them will misapply their avails." Faulkner v. Metcalf, 43 Barb. 255.

I think the court erred in overruling the demurrer.

L. Barbour and C. P. Jacobs, for appellants.

H. C. Newcomb, F. L. Mitchell, and W. A. Ketcham, for appellees.

Prichard and Another v. The State, ex rel. Keller and Others.

PRICHARD and Another v. THE STATE, on the Relation of KELLER and Others.

CO-ADMINISTRATORS.-Joint Bond.-Where co-administrators execute a joint bond as such, each is liable thereunder for the acts and omissions of the other. SAME.-Suit on Bond.-Sureties.-Execution.-Where, in an action on such joint bond, judgment is rendered for the plaintiff, the sureties on the bond have a right to an order directing that the execution to be issued on the judgment be first levied on the property of the principals, although one of the principals may have taken possession of the entire assets of the estate and administered the estate, so far as it has been administered, and the other administrator has never received any of said assets.

APPEAL from the Bartholomew Common Pleas.

DOWNEY, J.-This action was predicated on a bond executed by Elizabeth Cox, Ezekiel Nicholds, Henry R. Prichard and Isham Keith. It is alleged in the complaint that Elizabeth Cox and Ezekiel Nicholds were appointed administrators of the estate of Aaron Cox, deceased, and that the bond was executed by them to secure the faithful performance of their duties, with Prichard and Keith as their sureties.

It is also alleged, among other things, that Nicholds attended to the business of the administration, received all the assets, and that there remained in the hands of the administrators the sum of five thousand dollars of the money of the estate. It is also alleged, that they had been required to pay the money into court, and because they had not done so, and because Nicholds had become a non-resident of the State, they had been removed from the trust by the order of the common pleas.

Mrs. Cox demurred to the complaint, on the ground, as we are informed, that as Nicholds had received all the money, she was not liable.

This demurrer was overruled by the court, and, we think, correctly. Had the administrators executed separate bonds, as contemplated by the statute, 2 G. & H. 489, sec. 19, she might not have been liable for the acts and omissions of Nicholds. But as she executed a bond jointly with him,