Bd. of Com'rs of Vigo Cnty. v. Davis

• Decision Date: 11 January 1894
• Citation: 36 N.E. 141,136 Ind. 503
• Parties: BOARD OF COM'RS OF VIGO COUNTY v. DAVIS et al.
• Court: Indiana Supreme Court

136 Ind. 503

36 N.E. 141

BOARD OF COM'RS OF VIGO COUNTY

v.DAVIS et al.

Supreme Court of Indiana.

Jan. 11, 1894.

Appeal from superior court, Vigo county; G. A. Knight, Judge.

Petition by Sidney B. Davis and others to the board of commissioners of Vigo county, to increase the salaries of the judges of the circuit and superior courts of such county as provided by Act March 4, 1893. The board denied the petition, and petitioners appealed to the superior court, where it was heard by a special judge. From a judgment granting the prayer of the petition, the board of commissioners appeals. Reversed.

McCabe, J., dissenting.

Samuel R. Hamill, for appellant. Isaac N. Pierce and Sidney B. Davis, for appellees.

HACKNEY, J.

The appellees, twenty-one in number, proceeding under the act of the general assembly approved March 4, 1893, (Acts 1893, p. 341,) petitioned the appellant, representing that the salaries, as provided by law, of Hon. David N. Taylor, judge of the circuit court of Vigo county, and Hon. Cyrus F. McNutt, judge of the superior court of said county, were inadequate compensation for their services as such judges, and that such salaries should be increased, as to each of said judges, in the sum of $1,500. The petitioners prayed a hearing as provided in said act, and that said salaries be so increased. Such proceedings were had before said appellant that, after hearing evidence, the prayer of the petition was denied. From this ruling of the board the petitioners appealed to the superior court, where the petition was heard by a special judge, and the prayer thereof was granted. From the judgment of the superior court this appeal is prosecuted, and several errors are assigned, one of which alleged errors is the action of said superior court in overruling the motion of the appellant to dismiss said appeal from the action of the board. The alleged reason for the dismissal of said appeal was that no appeal would lie from the said action of the commissioners. The character and effect of the action of the commissioners is also presented by the appellees' motion to dismiss this appeal; and we find it our duty, at the threshold of this controversy, to determine this question, for upon it depends the jurisdiction of this court. It is manifest that if no appeal could lie from the action of the commissioners the superior court had no jurisdiction, and its proceedings cannot be reviewed here.

Where the duty of the commissioners involves judicial action, an appeal lies from its judgment, unless the right of appeal is denied expressly, or by necessary implication from the statute creating the duty. Where that duty does not involve judicial action, but consists in the performance of administrative, ministerial, or discretionary powers, no appeal lies from such action, unless it is expressly authorized by statute. Bunnell v. Board, 124 Ind. 1, 24 N. E. 370;Farley v. Board, 126 Ind. 468, 26 N. E. 174;Platter v. Board, 103 Ind. 360, 2 N. E. 544;Waller v. Wood, 101 Ind. 138;Board of Com'rs of Jackson Co. v. State, 106 Ind. 270, 6 N. E. 623;Padgett v. State, 93 Ind. 396;O'Boyle v. Shannon, 80 Ind. 159;Grusenmeyer v. City of Logansport, 76 Ind. 549;Baltimore, O. & C. R. Co. v. Board of Com'rs of St. Joseph Co., 73 Ind. 213;Sims v. Board, 39 Ind. 40;Moffit v. State, 40 Ind. 217;Bosley v. Acklemire, 39 Ind. 536. To which class the case in hand belongs must be determined from the act of the legislature under which these proceedings were had, and to that end we set out the act, which is as follows: “Section 1. Be it enacted by the general assembly of the state of Indiana that the salaries of the judges of the circuit and superior courts of the state shall be twenty-five hundred dollars annually, payable quarterly out of the state treasury. Provided, that in all judicial circuits of this state containing any city which had a population of more than thirty thousand as shown by the last preceding United States census, whenever twenty or more resident freeholders of the county in which such city is situated shall, by their petition filed with the board of commissioners of such county, represent that the annual salary of the judge of said circuit or superior court, as otherwise provided by law, is not an adequate compensation for the services of such judge, and should be increased in a sum to be specified in such petition, then it shall be the duty of the board of commissioners of such county, in open session, without delay, and at either a regular or special term of such board, to consider such petition and hear evidence thereon, and thereupon, within the limits of such evidence, but in no event in excess of the sum of fifteen hundred dollars or in excess of the sum specified in such petition, such board of commissioners may by entry of record fix and allow a certain sum as an addition to or increase of the annual salary of the judge of such circuit or superior court. Sec. 2. Upon such allowance being made by such board of commissioners, the sum so allowed shall be payable only out of the treasury of the county in which such petition is required to be filed, and shall be payable quarterly upon warrants drawn by the auditor of such county upon the treasurer thereof, and from and after the date of such allowance by such board, the same shall be held as an addition to the annual salary of such judge, as otherwise fixed and provided by law, and shall not be diminished during the term of office of such judge, and any such allowance and the proceedings of any board of commissioners in relation thereto, if in compliance with the provisions of this act, shall be final and conclusive.” The third section declares an emergency.

Several features of the act indicate to our minds the intention of the legislature to commit to the board of commissioners a discretionary power as to the increasing of judges' salaries, and not as conferring a power, the exercise of which could be held mandatory. The language of the act is permissive, in that it intrusts to the board a discretion as to the amount to be fixed as representing the increase of salary. The language is that “such board * * * may fix and allow a certain sum.” The word “may” has in some instances been construed as the equivalent of the word “shall,” but in no instance, to which our attention has been called, where it was evident that the act, from other points of view, conferred discretionary powers nor where it was not evident from the whole act that the legislative direction was mandatory. The application of the rule that “may” is to be interpreted for “shall” depends on what appears to be the true intent of the statute, and the ordinary meaning of the language must be presumed to be intended, unless it would manifestly defeat the object of the provision. Sedg. St. & Const. Law, p. 377; Minor v. Bank, 1 Pet. 46.

It is earnestly contended by counsel for the appellees that the act does not contemplate adversary parties or proceedings, in the sense that claims against counties are prosecuted. If it were conceded that this construction is correct, it but argues that the legislature did not intend to deprive the commissioners of discretion in the matter of granting an increase of salary in any sum. The legislative grant of power to increase salaries certainly involved the duty of judging of the wisdom and propriety, not only of the amount to be added, but as to whether any addition should be made. If this duty was not placed upon the commissioners, it had but one other place to rest, and that was upon the 20 petitioners. We cannot bring ourselves to the belief that the legislature intended to place the authority with the petitioners, of judging conclusively that an increase of salary was proper, and that the only duty or power of the commissioners was to adjudge the will of the petitioners, with the incidental right to fix the amount of the additional salary.

Another indication of the legislative intent to bestow a discretionary power upon the commissioners is found in the last clause of the second section, in these words: “Any such allowance, and the proceedings of the board of commissioners in relation thereto, if in compliance with the provisions of this act, shall be final and conclusive.” What shall be final and conclusive? Not only the sum fixed, but the proceedings of the board in relation thereto. But it is said such provision must be held not to imply a discretionary power, but as guarding the proceedings and the result from collateral attack, or from being questioned except by direct proceeding, such as an appeal. To this contention is cited the case of Grusenmeyer v. City of Logansport, 76 Ind. 549; and, while we observe that the reasoning of the learned and able judge who wrote the opinion in that case would support the contention here, yet such question was not before the court in that case, and of course the value of the case as authority depends upon the question decided, and not upon the argument, illustrations, or reasoning of the judge when not directed to the point in dispute. See State v. Hyde, 129 Ind. 306, 28 N. E. 186. In that case the language of the statute standing in the place of the clause here quoted was that the “order shall be conclusive in all suits by or against such incorporation.” It was there said that such provision “should not be regarded as an implied denial of the right of appeal,” and with the conclusion reached we fully concur. We think it manifest that the expression there employed was designed to protect the incorporation proceedings from collateral attack. The order was made “conclusive in all suits by or against such incorporation,” and it could not be implied that the order of incorporation was one of the suits concluded. The statute under investigation in this case is of a widely different character. The allowance, if any, is “final and conclusive;” and the proceedings in relation thereto, regardless of the function involved, whether...