Fry v. State ex rel. Ristine

Erazbr, J. This was a suit upon a county treasurer’s bond. The breaches alleged were a-failure to'account to the Auditor of State for, and to pay to the Treasurer of State, moneys received on account of liquor licenses, under the fifth section of the temperance act of 1859. 1 G. & H. 615. These moneys were received by the county treasurer prior to the taking effect of the school law of 1861. 1 G. & H., Sup. 30. Two questions only are presented by the appellants’ counsel for the consideration of this court.. One proposition relied on for the reversal of the ease is, that the Auditor of State is not the proper relator. This is correct, if the money sued for will not, when recovered, belong to the State. The common school fund does belong to the State. Rut it is argued that prior to the taking effect of the second section of the school law of 1861, moneys derived' from licenses for the sale of liquors did not belong to that fund. This argument overlooks the fifth section of the temperance act, by which it' is provided that those moneys shall “be applied and expended for common school pur [349] poses, in the same manner in which the revenues of the common school fund are or may be applied.” This makes the money thus derived essentially a part of the common school fund. It may he added, that we know of no law requiring a relator, where a suit is brought by the State, for her own use, upon a bond payable to herself. The second question is as to the admissibility in evidence on the trial, of a paper, as follows: “Salem T. Fry, late treasurer of Tippecanoe county, to State of Indiana, Dr. To amount collected by him on account of liquor licenses, from June 7, 1859, to August 1,1859....$2,050 00 To amount collected by Mm on account of liquor licenses, from Aug. 1,1859, to Aug. 8, 1861...... 3,300 00 $5,350 00 1861.—June 24.—Credit by cash....................2,300 00 Balance due the State.................................$3,050 00 “ Office of Auditor op State, Indianapolis, July 5, 1866. \ j “I, Joseph Mstine, Auditor of State of the State of Indiana, do hereby certify that the foregoing is a true and correct statement of the account of Salem T. Fry, late treasurer of Tippecanoe county, as the same appears from the records of my office. “In testimony whereof, I have hereto set my hand and-affixed the seal of my office, this 5th day of July, A. D. 1864. “J. Ristine, Auditor of State, “By T. G-. Palmer, Deputy.” It is enacted that when an officer who “has moneys belonging to the State shall fail to render an account thereof to, and make settlement with, the auditor,” &c., “upon being required, to do so by the auditot,” &c., “ th'e auditor shall state an account against such officer,” &c., “charging ten per cent, damages, and interest at the rate of six per cent, per annum from the time of such failure to render an [350] account,” &c. If the account be rendered and the settlement be made, but the money be not. paid to the proper officer or person, as the law requires, the auditor is required to sue. A copy of the account of the officer so sued, certified by the auditor, is made evidence in such suit. 1 G. & H., §§ 6-8, p. 120. The paper copied does not seem to be, nor is it certified to be, a copy of an account either rendered by Fry or stated by the auditor, as the statute contemplates.' It appears by the certificate to be an original statement, by the auditor, not made under authority of section sis of the statute already referred to, with damages and interest as required. We know of no statute authorizing the document to go in evidence, and it is very certain that there is no rule of the common law which would admit it. The judgment must be reversed, and a new trial ordered, because this evidence was admitted over the objection of the defendants. While we feel bound, when the purposes of substantial justice obviously require it, to notice any point in the record raised by the assignment of errors, though not argued by counsel, the ease before us does not, it seems to a majority of the judges, call for an opinion now upon the point involved in the separate opinion of the remaining judge. That point, inasmuch as it arises upon the evidence, (a new trial being, at any rate, awarded,) will, if good in law or fact, be available to the defendants hereafter. As a general rule, it is safer and better that questions shall be well argued before the court of last resort pronounces upon them, and especially where the question may not be one necessarily involved in a final determination of the cause upon the just merits, and may suggest a mode whereby a fund of great public importance may frequently be diminished. The judgment is reversed, with costs, and the cause remanded for a new trial.