Democratic Sentinel, Volume 21, Number 49, Rensselaer, Jasper County, 10 December 1897 — Judge Thompson’s Reasons [ARTICLE]

Judge Thompson’s Reasons

For His Injunction In The Tax Ferret Cases. The f blowing is Judge Thompson’s opinion in full, on his recent decision at Fowler, where his first injunction was issued in the Jasper Co. tax ferret case. Whereas, the matter presented to the Judge of the Jasper Circuit Court is one in which he is personally interested and the same being a matter of public interest it is deemed proper to present some of the reasons why the Circuit Judge should restrain the action of the Board of Commissioners of the County of Jasper which has also judicial powers as well as administrative and ministerial. The case presented in the petition calls in question the validity of two contracts, one made on September the 10th, and the other on November the 17th, 1897, each of these contracts is spread of record and if legal must conform to the provisions of section 5766 R. S. 1881, Sec. 7858 R. 8. 1894. This staute permits a tax payer to contest any claim by an employee of the Board, when suoh employment is to perform a duty assigned by the law to any public officer. This right of contest exists. Also when the employment for any purpose whatever is to be paid for by commission or percentage. The contract of September the 10th in substance is that the defendants Fleener and Carnahan are to report all sums due Jasper County to the proper officials and to receive for their pay a sum of money equal to one-half of the sums reported to and collected by said officials. For instance, under this contract the said Fleener and Carnahan might report the amount paid out by the County in any ditch cause where the proceedings are in abeyance sis a debt due the County to the proper official, the Board itself, this oontract would accord to said Fleener and Carnahan one-half of said sum, and the costs of proceedings to oollect by the Board, which is the proper officer. would be substracted from the other half. This contract is merely to report to the proper official and receive one half for the report.

The second contract is ,in substance that the defendants Fleener and Oamahan shall search for unassessed taxable property and report the same to the proper officer for appraisement and taxation and they shall receive for such services one-half of all taxes collected upon such property as reported. Under this oontract if additional property was assessed to a resident of Rensselaer to the amount of Ten thousand dollars the taxes thereon would bes three hundred and fifty dollars of which ram the County revenue would receive fifty and there would be paid out of the same revenue to

the prosecuting attorney, the grand jury, the county attorney, the board of Commissioners, the State school Superintendent, and county Superintendent are authorized and paid for correcting all cases of nonfeasance, mis-feasauce, or mal-feas-ance, in the collection and disbursement of all funds of which the Board have any superintendence, hence the first contract assumes to be an employment to perform duties required of public officers. The Strfte Board of Tax Commissioners, the County Board of review, the state auditor, the county auditor, the county treasurer, the county assessor, the township assessor, and grand jury have authority to look after the assessment and collection of taxes upon all taxable property. It is made the special duty of the Circuit Court to charge the grand jury to carefully scrutinize the conduct of all public officers, and indict where there is an direlection. It must therefore follow that the second contract is also an employment tp perform duties required of public officers. The Section of the statute requires that the Board shall perform two judicial acts as a preliminary requisite to the making of a contract of employment of the nature of these contracts. Each contract provides for payment by percentage or commission. In this hearing there was no certified copy of the judicial proceedings showing a case of indispensable public necessity for either the matter or manner of either of these contracts. The doctrine of strict construction has been applied in this State, denying the Board’s power in many cases, where it has assumed to act. The Board as a public agent is not the owner of the County revenue in the sense that a man owns his personal property. No public officer has the right to squander sequester, waste, or even distribute bounties out of the public fund in its official custody. Payment for services by a partition of the thing recovered or a sum to the value thereof is not favored in the law. Such a contract presents temptations to corruption which a public agency should avoid and the statute was passed to compel the members of the Board of Commissioners not to make such a contract unless an indispensable public necessity demanded the same, there could be no such necessity while the officers chosen by the people and by their agents remain fitted physically, mentally, and morally to proceed with their official duties. The Judical determination of the necessity should be at the instance of others and upon some notice so an appeal could be taken.

Each of the contracts set forth in the complaint seeks to enroach upon supersede and curtail the authority of public salaried officers. These contracts are subject to many objections, first; they are unconscion -ble and require the County revenue to be wasted for others’ benefit: Second; They are champertous in form, and against an enlightened public policy: Third; There does not probably ex|st an indispensable public necessity for them: Fourth; Their enforcement would be an usurpation cf public office by unauthorized persons. From as full a consideration as I have been able to give the matter it is very clear to my mind that the enforcement of each of said contracts must be restrained for the protection of the County revenue, The Judge as an officer of a Court of more general jurisdiction must not be understood as being opposed to a strict surveillance of the acts of all public officers. It is made his bounder: duty to charge the grand jury tc make diligent enquiry and report to the Circuit Court any negligent corrupt or wrong practices on the part of any public officer including himself. If the Board, as a court, did make due enquiry in a case and did find and entered of record that there did exist on September 10 1897 “an indispensable public necessity” for the employment of an expert to report to the board all sums due and to become due to the County revenue from all sources. And in addition did as a court make due enquiry in a case and did find and entered of record that there did exist on Nov. 17 1897 “anindispensable public necessity” for the employment of an expert to report unassesed taxable property to the County Auditor. And in addition the board on each case found and entered of record “an indispensable public necessity” that such expert should receive out of the County revenue a sum equal to one half he reported, this can be shown on the final hearing. The injunction must go.