Bd. of Com'rs of Allen Cnty. v. Chapman

• Decision Date: 05 October 1898
• Citation: 53 N.E. 187,22 Ind.App. 60
• Parties: BOARD OF COM'RS OF ALLEN COUNTY v. CHAPMAN.
• Court: Indiana Appellate Court

22 Ind.App. 60

53 N.E. 187

BOARD OF COM'RS OF ALLEN COUNTY

v.CHAPMAN.¹

Appellate Court of Indiana.

Oct. 5, 1898.

Appeal from superior court, Allen county; C. M. Dawson, Judge.

Action by Frank M. Chapman against the board of commissioners of Allen county. There was a judgment for plaintiff, and defendant appeals. Reversed.

Morris, Bell, Barrett & Morris, for appellant. Robt. Lowry, for appellee.

BLACK, J.

The appellee sued the appellant. The merits of the cause are shown by a special finding. It appears in the finding that the appellee was duly elected to the office of township assessor of Wayne township, Allen county, Ind., being eligible thereto, on the first Monday of April, 1890; that on the 7th of August, 1890, he qualified and entered upon the office, and discharged its duties thereafter until the 6th of August, 1895; that on the 6th of June, 1891, the board of commissioners of said county, in regular session, made and entered of record an order concerning the salary of the appellee as assessor of said township. In the order, which is set out in the finding, it was provided that “the salary of the township assessor shall be the sum of thirteen hundred dollars ($1,300) per annum for a period of one year, viz. March 6, 1891 (the date of the passage of the act of the legislature authorizing the same), to March 6, 1892.” It was shown that said board, convened in regular session, subsequently made and entered of record further orders on the same subject, as follows: On the 22d of March, 1892, an order providing that said salary, for one year from the 7th of March, 1892, to the 7th of March, 1893, should be $1,300, payable monthly; on the 21st of March, 1893, an order that said salary for the year commencing March 6, 1893, should be $1,100; on the 20th of March, 1894, an order fixing said salary for the year commencing March 6, 1894, at $1,100 per annum; on the 6th of March, 1895, an order fixing said salary from March 6, 1895, until the end of appellee's term, at the rate of $1,100 per annum. It was found that, in consequence of said last three orders, the county auditor had been deterred and prevented from issuing his warrants upon the county treasury in favor of the appellee for any greater amount of salary than the sum mentioned in said last three orders since the expiration of the first two years of appellee's service, and the appellee had never received or been paid by said board any greater sum than said sum of $1,100 per annum since the 6th of March, 1893; that he was fully paid his full salary and per diem from the commencement of his term up to the 6th of March, 1891, and also said sum of $1,300 for the year from March 6, 1891, to March 6, 1892, and from March 6, 1892, to March 6, 1893, and also said sum of $1,100 per annum since the last-mentioned date to the time when his successor was elected and qualified, and before the commencement of this action; that his successor had become qualified and entered on the duties of the office on the 6th of August, 1895, whereby the appellee's term then ended; that on each and every occasion of the adoption of said orders providing for the change of said salary from $1,300 to $1,100, and providing that said salary should be fixed at the latter sum, the appellee opposed such change, and objected to the board against any change being made, and to any reduction of said salary below the sum of $1,300; that the amounts received by the appellee for salary were received upon warrants or county orders issued by the county auditor upon the county treasurer. The finding states the names of the incumbents of the office of auditor who issued the warrants; and it was found that the appellee informed each of them, when the warrants were being issued for salary at the rate of $1,100 per year, that he did not accept the same in full payment of such salary, but that he did and would insist that he was entitled to receive payment for the time covered thereby at the rate of $1,300 per year; but, because of said last three orders of said board, said auditors refused to issue to the appellee warrants or county orders for any greater sum than at the rate of $1,100 per year for the period covered by such three orders; that the amount of the difference between $1,300 per annum and $1,100 per annum for the period for which he was paid only at the latter rate was $483.33. The finding contained some further statements relating to interest, which need not be set out. The court stated as conclusions of law: (1) “That after the adoption by the board of commissioners, defendant, of its order of the 6th of June, 1891, it could not, at its pleasure, alter and change the amount of salary to be paid to said plaintiff during his term of office, and that it had no lawful power or authority to make the further orders subsequently adopted by it on the 21st of March, 1893, the 20th of March, 1894, and the 6th of March, 1895;” (2) “that there is now due the plaintiff, and that he is entitled to recover of and from the defendant, as a balance of salary, the principal sum of $483.33.” The appellant having excepted to the conclusions of law, the court rendered judgment for the appellee.

The case involves the consideration of the question whether or not the board of commissioners had power, under the statute relating to the compensation of township assessors, to change the appellee's salary as indicated in the finding, so as to reduce it from $1,300 to $1,100 per annum. The statutory provision applicable here (Acts 1891, p. 349; section 6009, Horner's Rev. St. 1897; section 8084, Burns' Rev. St. 1894) is that in townships having a population of over 25,000 and less than 75,000, as shown by the last census, the...