Dissenting Opinion.
Roby, J.This suit is brought by appellee as a taxpayer to enjoin the board of county commissioners from using public funds in defending an action theretofore brought against said board on a written contract made by it for the construction of certain free gravel roads in accordance with an act approved March 3, 1893 (Acts 1893, p. 196), and an act amendatory thereof, approved March 7, 1895 (Acts 1895, p. 143, §6924 Burns Supp. 1897).
It is averred that said board is made a party to said pending action as the enforced agent and custodian of certain funds derived from the sale of bonds, and in no other capacity; that no judgment is therein sought against said county or any fund belonging to said county, but the relief sought is solely against the fund derived from the sale of bonds for a taxing district, and to have the same applied upon the payment of the costs of improvements made therein. The indebtedness created by the construction of a road under said act is not the indebtedness of the county, and the county is not liable for the cost thereof, but it is the indebtedness of the persons assessed for its construction. King v. Board, etc. (1904), 34 Ind. App. 231. When the contract is performed by the completion of the road, the law enjoins the duty upon the board of commissioners of receiving the same and directing the auditor to issue the warrant upon which finally payment is made, and mandamus is a proper remedy to compel the performance of said duty. King v. Board, etc., supra. It irresistibly follows from these premises that the expense of defending *200an action on a contract made in pursuance of said statute is not one which ought to be paid out of the general county fund, or for which the county is responsible. The expense thus incurred is a part of the cost of the proceeding and should be paid out of the special fund provided for the purpose of paying the cost of the improvement. It will not do to say that the county may subsequently reimburse itself by filing a claim against the special fund. Whether it may do so is immaterial, it not being, in the first instance, under any obligation to make the outlay.
Whatever confusion has arisen in this case is from the fact that the plaintiff who sues as a taxpayer is also the contractor, seeking in a different capacity and in another suit to enforce his contract, and from the further fact that the special agent against whom the action is brought is in another capacity the representative of the county. If the action was brought by a taxpayer who was in nowise connected with the ' contract, against a special agent, who was not a representative of the county, there would be no confusion as to rights and liabilities. The board, as the agent of the persons benefited by the improvement, has authority to direct the auditor to draw his warrant for the incidental expenses of constructing such road as well as to direct him to draw his warrant for the contract price, and there is therefore no question of preventing the board from defending the pending action or of restricting its available means of making such defense.
It follows that the petition for rehearing should be granted' and the judgment affirmed.
Robinson, O. L, and Myers, J., concur.