On Petition for a Rehearing.
Howe, C. J.Appellant’s counsel ask a rehearing of this cause, and support their petition therefor by an able and exhaustive argument. In our original opinion, we held that the contract or agreement, set out in appellant’s complaint, “by and between the board of commissioners of Steuben county, of the first part, and the auditor of such county, of the second part,” was illegal and void for two reasons, namely % 1. Because it was wholly unauthorized by the statute (section 6416, R. S. 1881), and therefore void; and 2. It was void as against public policy, because “ the law will not tolerate the employment of a public officer to discharge his plain official duty, at a compensation other or different from, or in addition to, the compensation given him. by law for his official services.”
Thus far, our original opinion was favorable to the appellant, and we do not understand that his learned coilnsel complain of such decision, nor of the reasons assigned therefor. But we went further, in our original opinion, and held therein that although such contract or agreement was unauthorized by law and void, as against public policy, and although the execution and existence of such illegal and void contract prompted and induced the county auditor to make the assessment of appellant’s omitted property, of which he complained, yet his complaint was bad on demurrer, because he had nowhere averred therein that he did not own the omitted property, wherewith he was so assessed by such county auditor, nor that such property was for any cause exempt from taxation, nor even that the county auditor had placed an unjust or excessive valuation on such property. Upon this *356point, we said: “ If the appellant owned the omitted property which had not been assessed for taxation, if it was lawfully subject to taxation, and if no unjust or excessive valuation was placed thereon, then the taxes assessed on such property are a proper and legal charge against appellant and his propérty, whatever motive may have prompted and induced the county auditor to assess such omitted property, and to enter it and the taxes thereon on the tax-duplicate.” In other words, we held in our original opinion, that however illegal ánd void the contract or agreement, between the county board and county auditor, may in fact be, such illegal and void contract will afford the appellant no sufficient cause of action for either legal or equitable relief, unless his complaint affirmatively shows that he has been injured or damaged thereby.
Appellant’s.counsel vigorously assail, in argument, this holding of the court. They say: “It is not enough, in the opinion of the court, to avoid the decision of a judge from whom no change of venue can be taken, whose decision is final, and from which there is no appeal, that he is interested largely in the very point decided, but that a party to such decision is bound by it, unless he avers and proves that it was necessarily wrongful and unjust in point of fact. In other words, that the decision of such a judge, though the law provides no means of removing the cause from him or vacating the judgment by appeal or otherwise (as is the case with the auditor) is presumably rightful and just, and therefore, until the contrary is alleged and proved, must stand as a valid and binding judgment.” And so on, through thirteen pages of closely printed matter, appellant’s counsel have labored assiduously and learnedly to show that, under the law, a county auditor is a judge and acts as such in the discharge of the duties imposed on him by section 6416, supra, in relation to the assessment and valuation of omitted property, and the addition thereof to the tax-duplicate, for the purposes of taxation. To enable the county auditor to dis*357charge such duties, the General Assembly say, “he is invested with all the powers of assessors under the act of March 29th, 1881, concerning taxation;” and appellant’s counsel say, he is invested with the judicial power of the State, is a court or judge as the case may be, and, in the discharge of such duties, all his acts are judgments.
In the organic or fundamental law of this State, section 1 of article 3, it is thus ordained: “ The powers of the government are divided into three separate departments; the legislative, the executive, including the administrative, and the judicial; and no 'person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution expressly provided.” Section 96, R. S. 1881.
In section 1 of article 7 of our State Constitution, it is thus declared: “The judicial power of the State shall be vested in a Supreme Court, in circuit courts, and in such other courts as the General Assembly may establish.” Section 161, R. S. 1881.
A county auditor is an officer, belonging to the administrative branch of the executive department, and in section 6 of article 6 of the State Constitution, it is ordained that all county officers shall- “perform such duties as may be directed by law.” Section 156, R. S. 1881. It is nowhere provided, expressly or otherwise, in our State Constitution, that any county auditor or other officer, of the administrative branch of the executive department of the State government, may exercise any of the functions of the judicial department. In this case it is not claimed that the statute -has invested the county auditor with the judicial power of the State, or has authorized such auditor to exercise any of the functions of the judicial department of the State government. If the statute had invested the county auditor with judicial power, or had' authorized such auditor to exercise judicial functions, in the discharge of any of the duties imposed on him by law, it is certain that the statute, to that extent, would have been *358unconstitutional and void. It has been uniformly held by this court that judicial officers only can exorcise judicial powers or functions. Wright v. Defrees, 8 Ind. 298; Waldo v. Wallace, 12 Ind. 569; Columbus, etc., R. W. Co. v. Board, etc., 65 Ind. 427; Shoultz v. McPheeters, 79 Ind. 373; Gregory v. State, ex rel., 94 Ind. 384 (48 Am. R. 162); Elmore v. Overton, 104 Ind. 548; Pressley v. Lamb, 105 Ind. 171.
It follows from what we have said, that under our laws and decisions the auditor of Steuben county was not and could not have been a judge, invested with the judicial power of the State, and authorized to exercise judicial functions; and, further, that his proceedings and acts as such auditor, under -the provisions of section 6416, supra, in the assessment of appellant’s omitted property for the purposes of taxation, were under our law in no proper or legal sense a judgment. This conclusion disposes of the entire argument of counsel, in support of appellant’s petition for a rehearing of this cause. The argument proceeds upon an erroneous theory, and has no sufficient foundation, either in fact or in law.
Appellant’s petition for a rehearing is overruled, at his costs.
The appellee has also filed a petition for a rehearing of this cause. In this petition it is claimed that we have given an erroneous construction to section 6416, supra, quoted at length in our original opinion, or, rather, to the last provision or sentence of §úch section, which reads as follows: “ No person other than the officials provided for in this law shall be employed by the county commissioners to discover omitted property.” In construing this provision of the statute, in our original opinion, we held, in effect, that the manifest intention of the General Assembly in the enactment of such provision was to prohibit the employment by the county commissioners of persons who made it their special business, for a consideration, “to discover omitted property.” We held, further, that such statutory provision was not fairly open to the construction that the county commissioners were thereby *359authorized, or-that the Legislature thereby intended to authorize such commissioners, to employ the county auditor or any other official, named in the act of March 29th, 1881, concerning taxation, to discover omitted property. We adhere firmly to the construction we have placed upon the statutory provision last quoted, in our original opinion, and the able argument of appellee’s learned counsel, in support of a different construction, has not caused us to entertain even a •doubt in regard to the correctness of our original decision of the question under consideration.
Filed June 25, 1885.Appellee’s petition for a rehearing is overruled, at his costs.