Benson v. Christian

Decision Date17 November 1891
Docket Number15,066
Citation29 N.E. 26,129 Ind. 535
PartiesBenson, Administrator, v. Christian
CourtIndiana Supreme Court

From the Hamilton Circuit Court.

Judgment reversed, with instructions to award a new trial.

R. R Stephenson and W. R. Fertig, for appellant.

W. S Christian, T. J. Kane and T. P. Davis, for appellee.


Elliott, J.

This action was brought to recover money alleged to have been illegally exacted by the appellee as costs taxable in his favor as clerk of Hamilton county. The appellee succeeded upon the evidence.

The amount in controversy is much below the limit specified in the jurisdictional clause of the act creating the Appellate Court; and, if it were not for the fact that a question as to the constitutionality of a statute is made and argued, this court would not possess jurisdiction of this appeal. The fact that an action is against an officer does not change the rule, for where a recovery of money only is sought, then no matter whether the action is against a public officer or an individual, or whether the action is in contract or tort, the jurisdiction is in the Appellate Court, unless the validity of a statute is involved. Ex parte Sweeney, 126 Ind. 583, 27 N.E. 127, and cases cited.

The element which carries the appeal to this court is the one introduced by the attack upon the validity of the act, for where the question of the validity of a statute is fairly debatable, and does not rest on mere assertion, jurisdiction is in this court. Ex parte Sweeney, supra. This must be true, for if the Appellate Court could determine whether there was or was not a constitutional question involved, it would, in deciding that question, necessarily decide whether an appeal lies to the Supreme Court, and this would violate the fundamental rule that the higher court must determine its own jurisdiction; and it would also defeat the manifest purpose of the statute creating the Appellate Court. It is obvious that the court of last resort must determine the right of appeal; for if it were otherwise it would be in the power of a court of intermediate jurisdiction to prevent, by its decisions, a cause from reaching the court where the authoritative ultimate judgment must be pronounced. The authorities, however, so fully settle this question that prolonged discussion is unnecessary.

Where there is enough in the argument of counsel to fairly indicate that they sincerely believe that a constitutional question is involved, and also to supply fair reason for that belief, this court must assume jurisdiction, but there must be argument indicating such belief, and stating reasons for it, as bald assertions will go for nothing. Where there are arguments, and not mere assertions, the court must presume that counsel are sincere, and, presuming this, decide the question made by their argument in cases where the record presents it. Courts are bound to assume that counsel will not discredit their profession by insincere arguments or statements. Acting upon these presumptions and considerations, we shall decide the questions arising upon the contention that the statute providing for recovering fees illegally exacted is unconstitutional.

There is little force in the argument, tacitly rather than directly urged, that the Legislature has no constitutional power to provide for the recovery of fees paid to an officer where they are exacted by an illegal taxation made by the officer. It is true, that the common law rule is, that money paid under a mistake of law can not be recovered, but it does not follow that there is no power in the Legislature to provide for a recovery in such cases. Common law rules may be abrogated or changed by legislative enactment, unless the abrogation or change is interdicted by the letter or the spirit of the Constitution. There is nothing in our Constitution forbidding the Legislature from so changing the common law rule as to give a right of action against a public officer who illegally taxes and collects fees. The proposition is so clear that it requires no elaboration, but it may not be out of place to refer to the well-known rule that an officer takes his office cum onere, and if he is not content with the burdens or restrictions imposed by the Legislature he can resign.

The title of the act here in question is this: "An act supplemental to an act entitled 'An act fixing certain fees to be taxed in the offices and the salaries of officers therein named, providing for certain employees in certain public offices and fixing their compensation, defining certain duties and liabilities of officers and persons therein named, providing for the disposition of certain moneys, making certain appropriations declaring certain violations of the provisions of this act to be a penal offence and prescribing the punishment and repealing all conflicting laws." Elliott's Supp., section 1969. The title may not be a model, but it is sufficiently clear and comprehensive to effectively include a provision giving a right of action for fees illegally collected by county officers. The title of an act need not, as it has been often decided, go into details. It is sufficient if it indicates with reasonable precision and clearness the subject it embraces. Nor is an act invalid because it includes details not mentioned in the title, provided the details are germane to the general subject designated in the title. Where a subject is properly designated and particular provisions germane to the subject named are embodied, the act is valid. The provisions of an act connected with the general subject and not foreign to it, or disconnected from the subject named in the title, may be properly embodied in the act although their...

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