Benton County Council of Benton County v. State ex rel. Sparks
| Decision Date | 26 February 1946 |
| Docket Number | 28114. |
| Citation | 65 N.E.2d 116,224 Ind. 114 |
| Parties | BENTON COUNTY COUNCIL OF BENTON COUNTY et al. v. STATE ex rel. SPARKS, County Superintendent of Schools. |
| Court | Indiana Supreme Court |
Appeal from Newton Circuit Court; Moses Leopold Special judge.
Berry & Nolin and Wilbur G. Nolin, all of Fowler, and E. Burke Walker, of Lafayette, for appellants.
Lutz Johnson & Lutz, of Indianapolis, and George F. Sammons of Kentland, for appellee.
This is a suit by the appellee relator Ralph P. Sparks against the Benton County Council and its members in their official capacity, the Benton County Board of Commissioners and its members in their official capacity, and the auditor of said county, to mandate the appropriation certification, allowance and payment of appellee's salary as county superintendent of schools of said county.
Upon the overruling of appellants' demurrer murrer to appellee's amended complaint, appellants refused to plead further and judgment was rendered against them as on default from which judgment this appeal is prosecuted.
The pertinent parts of the amended complaint are substantially as follows: That the appellee was the County Superintendent of Schools of Benton County from August 16, 1941, to August 15 1944, at which last mentioned date he resigned said office; that prior to his taking office his statutory salary of $1,560 per annum as provided by § 49-1004, Burns' 1933, was raised to the sum of $2,700 which increase became effective January 1, 1942; that on August 2, 1943, and during appellee's term of office, the township trustees in said county by the order of that date, increased said salary from $2,700 per annum from and after August 1, 1943; that, although the increase remained in full force, the county council refuses to enter an appropriation for said salary, and on account of said refusal the board of commissioners has not been able to allow the salary or has the auditor been able to certify the appropriation to said board of commissioners.
As authority for said increase in salary the appellee relies upon § 49-1014, Burns' 1933 Supp. which reads as follows:
'The salary of the county superintendent, as herein stipulated, may be increased by a majority of the township trustees to an amount which, in the judgment of a majority of the township trustees, may seem proper, and the county council shall appropriate and the board of county commissioners shall allow the necessary funds to pay such increase in the salary of the county superintendent.'
Appellants' demurrer to this complaint is on the ground that the same does not state facts sufficient to constitute a cause of action. The reasons set out in the memorandum filed with the demurrer and which are insisted upon by appellants in this appeal are, first, the above statute is unconstitutional because it is a special and local law and violates § 22, Art. 4, of the Constitution of Indiana, and confers special privileges upon the appellee which is prohibited by § 23, Art. 1 of the Constitution of Indiana; and, second, that if said statute is valid it cannot be construed as authorizing an increase in the appellee's salary during his term of office, as such increase is prohibited by § 2, Art. 15 of the Constitution of Indiana as amended in 1926. We will take these objections up in their order.
That portion of § 22 of Art. 4 of our constitution relied upon by appellants reads as follows:
'The General Assembly shall not pass local or special laws, in any of the following enumerated cases: * * *
* * *
The act complained of applies to all county superintendents throughout the state. Such classification is a general one and there is no basis for the contention that the same is local. 'A law is not local or special if it applies to all who come within its provisions generally and without exception, rests upon an inherent and substantial basis of classification, and its operation is the same in all parts of the state under the same circumstances and conditions.' Saraceno v. State of Indiana, 1931, 202 Ind. 663, 177 N.E. 436, 437.
Appellants contend that this statute confers a privilege upon this office not conferred upon other public offices and is in the nature of a special legislative favor as prohibited by § 23, Art. 1, of our constitution which reads as follows:
'The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.'
A complete answer to this objection is that a public office is not a privilege. 'Every man appointed to an office in a sense enjoys a privilege not enjoyed by another, but the appointment does not deprive any other citizen of the privilege; on the contrary the appointee is an instrument of the government to protect such other citizen in his rights.' Ferner v. State, 1898, 151 Ind. 247, 51 N.E. 360, 361. If, however, if could be said that § 23, supra, applies to public offices, the provision cannot be held to embrace the facts in this case, as the law in question applies to all county superintendents throughout the state which, as we have heretofore indicated, is a proper classification for legislation. Truelove v. City of Washington, 1907, 169 Ind. 291, 82 N.E. 530.
It is insisted that this statute amounts to a delegation of legislative authority to administrative officers, namely, township trustees, which cannot be done. Dunn, Auditor et al., v. City of Indianapolis, 1935, 208 Ind. 630, 196 N.E. 528, 5 N.E.2d 629. With this we cannot agree as the fixing of salaries is not a strictly legislative matter and may be delegated to a department of government other than the legislative. Arnett v. State ex rel., 1907, 168 Ind. 180, 80 N.E. 153, 154, 8 L.R.A., N.S., 1192. The office of county superintendent is not a county office, nor is the same in any character local. His is a state office, his powers and duties relate entirely to the administration of the public school system which is a function of the state government. State ex rel. Osborn v. Eddington, 1935, 208 Ind. 160, 195 N.E. 92. This being true the general assembly can delegate the power of appointing a county superintendent and make provisions for the fixing of his salary. Stone et al. v. State ex rel. Bossong, 1935, 208 Ind. 65, 194 N.E. 642.
Appellant argues that even if the delegation by the legislature of the authority to fix the salary of the appellee was a delegation of administrative power, the same is unlawful, as there is no maximum limit fixed by this statute to the salary which may be voted to the appellee by the township trustees. In other words, there is a delegation of discretionary duties to the administrative officers without imposing reasonable standards under which such discretion is to be exercised. 'It is, of course, true that the General Assembly may not delegate discretionary duties to administrative officers without imposing reasonable standards under which such discretion is to be exercised.' Kryder v. State, 1938, 214 Ind. 419, 15 N.E.2d 386, 389.
It will be noted that our statutes have provided a limitation upon the township trustees as to whom they can employ as a county superintendent. § 28-701, Burns' 1933 Supp. Under this statute to be eligible to hold this office one must have had five years experience as a teacher in the public school and be the holder of a first or second grade superintendent's license. The statute under...
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