On Petition for a Rehearing.
Jordan, J.— The appellees herein have filed a petition *99for a rehearing, and their learned counsel have very forcibly and earnestly presented their reasons why the same ought to be granted.
We have again, at the solicitation of appellees, carefully examined the points involved in this case and the authorities cited, and are unable to come to a conclusion different from that arrived at in the original opinion filed in this cause. The decisions of this court cited by appellees, and relied on by them in support of their contention, and which pertain to the rule governing orders made by the lower courts in remanding proceedings back to boards of commissioners on appeals therefrom, as to the effect of these orders, or direction to the board how to proceed, have no application to the point here in controversy.
In the judgment of the lower court, in the case of Barner v. Bayless, 134 Ind. 600, and from which the point in question arises, the railroad tax therein controverted was held to be valid and collectible, and in addition the court made the order as stated in the original opinion in this cause.
The question which is now again presented to us upon the petition for a rehearing is, was this order of the White Circuit Court entered against the appellant, treasurer of Clinton county, in a proceeding wherein he was not a party, and in no wise before the court, one to which he was bound to yield obedience, and upon his refusal so to do he would be guilty of contempt of court, and subject to a fine or imprisonment in the county jail? We think that the well settled principles of law compel us to adjudge that this order of the court, under the circumstances, was invalid, and consequently could not be enforced by attachment. Had the appellant voluntarily appeared to the action herein referred to/or had he been brought into court and submitted to its jurisdiction, and *100had the order then in controversy been entered against him, a different question might be presented upon his refusal to obey the same.
It is true that upon the final determination of the case of Barner v. Bayless, supra, the judgment of the court would have been a sufficient warrant and authority for the appellant to have proceeded in accordance therewith, unless his action in the premises had been arrested by some judicial order.
If this court were to déclare the law to be as contended for by the appellees, prison doors might fly open with ease and dispatch, and personal liberty would be jeopardized. If the appellant refused to discharge a duty enjoined upon him by law, a proper remedy was provided to compel.him upon his failure to show sufficient cause for his refusal. The contention of appellees that this would necessitate another action, and result in delay and hardship, is a matter over which this court has no control. It is not a tribunal constituted to make laws, but its province is to declare what the law is governing the case under consideration.
In the decision of this cause, we do not mean to be understood that the appellant was a necessary party to the action wherein the order was made by the court, but what we do decide is the question involved, that his not being a party before the court, resulted in the order having no binding effect upon him, nor do we mean to hold that' ministerial officers of courts who are such in the proper sense and meaning of that term, can not be required to obey the orders thereof, unless parties to the proceedings wherein they are entered.
The petition for a rehearing is therefore overruled.
Filed Jan. 10, 1895.