Bd. of Com'rs of Clinton Cnty. v. Given

• Decision Date: 12 December 1907
• Docket Number: No. 20,858.,20,858.
• Citation: 82 N.E. 918,169 Ind. 468
• Parties: BOARD OF COM'RS OF CLINTON COUNTY v. GIVEN.
• Court: Indiana Supreme Court

169 Ind. 468

82 N.E. 918

BOARD OF COM'RS OF CLINTON COUNTY

v.GIVEN.

No. 20,858.

Supreme Court of Indiana.

Dec. 12, 1907.

On rehearing. Petition overruled.

For former opinion, see 80 N. E. 965.

JORDAN, J.

A petition for rehearing is presented in this case, based upon the grounds that the court erred, first, in holding that the county, and not the treasurer, is entitled to the demand fees in the collection of delinquent taxes; second, in holding that the complaint in this case does not state a cause of action.

We believe that the question herein involved was so fully considered at the original hearing that in reason very little in addition can be said in support of the conclusion reached. But, by reason of the earnest contention of counsel for appellee that the petition for rehearing ought to be granted, we have concluded to give some further expression of our views in regard to the interpretation of the law involved in this appeal. In the construction of a statute it is the spirit and purpose thereof for which regard must be had. If the legislative intent is fairly expressed therein, the law should be so construed by the courts as to carry out such intent. In fact, it is the duty of the court to accept a valid act of the Legislature, and give full force and effect to its provisions. Where the statute is clear upon its face, and is fairly susceptible of only one construction, such construction must be given. As we view the act herein involved, there is no doubt nor ambiguity therein in regard to the intention of the Legislature in respect to the ownership of the fees in dispute in this case. That under its positive or express declaration they were intended to be the property of the county is beyond successful controversy. State v. Sopher, 157 Ind. 360, 61 N. E. 785. The mischief or evil which the Legislature, in the enactment of the fee and salary acts of 1891 (Acts 1891, p. 446, c. 194) and 1895 (Acts 1895, p. 319, c. 145) intended to remedy or abrogate was that of compensating county officers by the fees charged and taxed by them, as authorized by former laws. In giving a practical application and construction to a law, a well-settled rule requires a court to look at the mischief or defects which existed at the time of its passage, or, as in this case, which existed at the time of the enactment of the fee and salary act of 1891, from which the act of 1895 was principally copied. In construing the statute, where the same is open to construction, it is the province and duty of a court to so construe or interpret it as to advance the remedy and suppress the mischief as contemplated by the legislative department. Spencer v. State, 5 Ind. 41;State ex rel., etc., v. Denny, 67 Ind. 148;State ex rel., etc., v. Forkner, 70 Ind. 241;City of Evansville v. Summers, 108 Ind. 189, 9 N. E. 81; 1 Cooley's Blackstone, Com. (4th Ed.) p. 79.

To reiterate, at least in part, what we said in our former opinion, section 119 of the fee and salary act of 1895 (Acts 1895, p. 350, c. 145) provides that, “in case such delinquent tax and penalty is paid on demand, such treasurer shall charge and receive from such delinquent, in addition to the taxes and penalty, the sum of twenty-five cents, and where a levy is made he shall charge and receive, in addition to his other costs, the sum of fifty cents for such demand.” At the session of 1901 the Legislature passed an act concerning the collection of delinquent taxes in counties having a population of more than 100,000, according to the last preceding United States census. Acts 1901, p. 309, c. 138. The first section of this act provides that “after the first Monday in May the treasurer of all counties in the state having a population of more than one hundred thousand, according to the last preceding United States census, shall cause a list to be made of the delinquents, with the amount due,” etc. This section, with some exceptions, is of similar import as is section 119 of the fee and salary act of 1895. It requires the county treasurer of the counties to which it is applicable, either in person or by deputy, to make a demand of every resident taxpayer who is delinquent for the amount of his delinquent taxes and penalty thereon, etc. It further provides, as does section 119, supra, that, in case such delinquent taxes and penalty are paid upon demand, such treasurer shall charge and receive from such delinquent, in addition to the taxes and penalty, the sum of 50 cents for such demand, which (i. e., demand fee) “ shall belong to the treasurer in addition to his salary provided by law.” (Our Italics.) It will be noted that this section increases the demand fee from 25 to 50 cents. By section 2 of the same act it is provided that the levy fees, in case a levy and sale of personal property to pay delinquent taxes, “ shall belong to the treasurer in addition to his salary provided by law.” (Our Italics.) There can be no doubt, under the provisions of this statute, in respect to the demand and levy fees belonging to the treasurer, for the Legislature has seen proper to expressly declare they shall belong to him “in addition to his salary.” The act of 1901, supra, under the express limitation therein provided, was intended to apply only to the treasurer of Marion county, as the latter county was the only one at that time that contained the required population. In 1903, by an act (Acts 1903, p. 60, c. 29, § 21) amending section 153 of the general tax law (Acts 1891, p. 260, c....