Neville v. Adams County

Ethridge, J., delivered the opinion of the court. Adams county filed an injunction suit against J. H. Neville, an auditor appointed by the Governor to audit the books of the county officers of Adams county, and against R. L. Oorban, circuit judge, and the chancery clerk of Adams county, seeking to restrain the said Neville-from auditing the books of Adams county at the expense of Adams county, and seeking to restrain R. L. ¡Oorban, circuit judge, from approving the account of said J. H. Neville and to restrain the chancery clerk from issuing a warrant for such auditing. The bill alleges that the petition to the Governor for the appointment of the said Neville did not contain twenty-five per cent of the qualified electors of Adams county, and also alleged that chapter 241, Laws of 1914 (section 4783, Hemingway’s Code) was unconstitutional and void for several reasons set forth in the bill. The chancellor granted the injunction as prayed for in the bill, and a motion was made to dissolve the injunction so granted, which motion was accompanied by a demurrer to the bill, which said demurrer and motion to dissolve the injunction was overruled by the chancellor, and an appeal granted to this court to settle the principles of the case. Section 2388, Code of 1906 (section 4780, Hemingway’s Code), reads as follows: “The Governor is authorized, when he deems it proper, to appoint an expert accountant, whose duty it shall be, [421] under the direction of the Governor, to audit and examine the books, accounts, and vouchers of all officers, state or county, or of any of the state educational, charitable, or reformatory institutions, or of the officers thereof, or of any other institution supported in whole or in part by the state.” Chapter 241, Laws of 1914 (section 4783, Hemingway’s Code)., reads as follows: “Where án expert accountant is appointed by the Governor under section 2388 of the Code of 1906 to audit the books and accounts of county officers of any county and the accountant so appointed shall perform services under such appointment in the auditing the books of any county officers, .such accountant shall submit his bill for services, itemized, to the circuit judge of the district whose duty it shall be to approve the same, if found correct and reasonable. And thereupon said account with a copy of the order of the judge or court, shall be sent to the Governor for his approval, who, if he shall find the same correct and reasonable shall approve the same and thereupon it shall be the duty of the board of supervisors of the county the books of Avhose offices are audited, to allow said account. And, the clerk of the board shall then issue a Ayarrant for the same on the county treasury as in other cases. As to auditors or accountants hereafter to be appointed by the Governor, this act shall apply only to cases where the Governor has been petitioned by twenty-five per cent of the qualified electors of the county to appoint an accountant. But as to services heretofore rendered by accountants under appointment from the Governor as to payment of said accountant the same shall apply and the accountant shall be paid as provided herein, although said accountant was appointed without a petition from the qualified electors.” It will be seen from a reading of these two sections that chapter 244 of the Laws of 1914 imposes the liability upon the county for the auditing of the books of the county where the Governor has been petitioned by twenty-five per cent of the qualified electors of the county to appoint an [422] accountant, and that this section, or chapter, does not restrict the power of the Governor to appoint an auditor under section 2388, Code of 1906 (section 4780 Hemingway’s Code),, and the right of the auditor to audit the books is not therefore involved in this suit, but the sole question presented is as to whether the auditor shall be paid out of some fund provided by the legislature for such purpose. In our view it is not necessary now to enter upon a consideration of the constitutionality of chapter 241, Laws of 1914, because in our view the injunction was prematurely sued out. When the auditor presented his demand for compensation to the board of supervisors the questions of the legality of his appointment under the provisions of chapter 241 would then arise. And if the petition was insufficient, or if the act was unconstitutional, the board could then decline to allow the account, and the auditor would be compelled to institute some action in the courts to compel them to issue a warrant, or to appeal from their order refusing to issue the warrant to the circuit court, or by instituting a suit upon his account in the, court having proper jurisdiction thereof, in which suit all proper questions could be determined. The auditor had not presented an account, but was proceeding with the audit. The records of the county are public records, and are subject to the inspection of any person, and there is at this time no necessity for resorting to. the writ of injunction. We think, therefore,, the chancellor was in error in refusing to dissolve the injunction and his decree will be reversed., and judgment entered here dissolving the injunction and dismissing the bill. Reversed and rendered.