Benson v. Christian
| Decision Date | 17 November 1891 |
| Citation | 29 N.E. 26,129 Ind. 535 |
| Parties | BENSON v. CHRISTIAN. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Hamilton county; WILLIAM NEAL, Judge pro tem. Reversed.
Action by Julius L. Benson, as administrator, etc., against James R. Christian to recover money illegally exacted by defendant as costs taxable in his favor as clerk of Hamilton county. Judgment for defendant. Plaintiff appeals.Stephenson & Fertig, for appellant. W. S. Christian and Kane & Davis, for appellee.
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 on a 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. Rep. 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 unnecesary. 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 cannot 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 salaries of officers therein named, providing for certain employes 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 offense,and prescribing the punishment, and repealing all conflicting laws.”’ Elliott, Supp. § 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...
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