Wyoming County v. Bardwell

Mr. Justice Sterrett delivered the opinion of the court, The plaintiff, in an action of trespass on the case against the county of Wyoming, filed a statement, in lieu of a declaration, setting forth that his cause of action was founded on orders drawn by [106] the military board on the county treasurer; that payment thereof had been demanded of the commissioners and treasurer, and was refused. To this statement the defendant demurred, -and assigned specially, as cause of demurrer, “ that the treasurer of the county hath not, nor is he bound to have, any funds out of which to pay said orders, the act providing the ways and means for the payment having been repealed.” The plaintiff joined therein, and judgment was rendered in his favor. The demurrer refers to the 9th .section of the Act of April 16th 1873, Pamph. L. 74, which repeals “any act or parts of acts which impose a per capita tax upon persons liable to military duty.” It was wholly irregular to assign the repeal of the tax as cause of demurrer. If it furnished any ground of defence it should have been brought forward by way of plea. A demurrer to a declaration or statement arises on its face and is never founded on matter collateral to the pleading which it opposes. But, aside from this, the orders in suit were all drawn before the date of the repealing act, and, inasmuch as it was not retrospective in its operation, the liability of the county, if any existed, could not be affected thereby. It does not follow, however, because the demurrer was bad, both in form and substance, that the plaintiff was entitled to judgment. The recognised rule of pleading is, that on demurrer the court will consider the whole record, and give, judgment for the party who appears to be entitled thereto; or, as it is expressed in Clearweather v. Meredith, 1 Wall. 38, a demurrer, whenever interposed, reaches back arid seizes hold of the first defective pleading. The plaintiff, therefore, was not entitled to judgment, unless the statement disclosed a good cause of action. As we have seen, it simply alleges that he was the holder of orders drawn by the board on the county treasurer, payment of which had been demanded and refused. It contains no averment that funds, arising from the per capita tax, were in the hands of the treasurer, subject to the orders of the board, or of any other fact from which liability of either the county or the treasurer would arise. But it may be said that the plaintiff’s statement might have been so amended as to present a good cause of action. This depends on whether the Militia Act and its supplements enjoin any duty from which can spring a liability of the county in its corporate capacity. It declares who shall be liable to military duty, and provides for their enrolment; and the supplement requires all who are thus enrolled and fail to become members of some military organization, to pay annually fifty cents each to the collector of taxes, whose duty it is to pay the same to the county treasurer, to be by him held and disbursed as a brigade or military fund; and the board, composed of the commanding and other officers of the brigade, are authorized to audit and adjust all claims upon the fund and “make their orders upon the treasurer for the payment thereof.” [107] It will be observed, from these leading features of the act, that the county treasurer is made the custodian of the fund, which he is required to keep separate and distinct, and disburse only on orders drawn by the board. The existence of the special fund in the hands of the treasurer is the foundation of the right to draw on him, as well as of his duty to honor the orders. If he fails to perform his duty in this respect, there can be no doubt as to his liability, and the remedy against him is ample. The commissioners of the county have no authority to draw upon, or in any manner control, the military fund. There appears to be nothing in the provisions of -the act and its supplements, taken in connection with the facts, as disclosed by the record before us, to fasten liability on the county. Judgment reversed.