Board of Commissioners of County of Clinton v. Given

• Decision Date: 12 April 1907
• Docket Number: 20,858
• Citation: 80 N.E. 965,169 Ind. 468
• Parties: Board of Commissioners of the County of Clinton v. Given
• Court: Indiana Supreme Court

80 N.E. 965

169 Ind. 468

Board of Commissioners of the County of Clinton v. Given

No. 20,858

Supreme Court of Indiana

April 12, 1907

Rehearing Denied December 12, 1907, Reported at: 169 Ind. 468 at 482.

From Clinton Circuit Court; Jere West, Special Judge.

Action by Alexander B. Given against the Board of Commissioners of the County of Clinton. From a judgment for plaintiff defendant appeals. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901, p. 590.

Reversed.

Harry C. Sheridan, for appellant.

Morrison & Kent, Samuel M. Ralston, Frank Ellis, C. L. Medsker and Taylor, Woods & Willson, for appellee.

OPINION

Jordan, J.

Action by appellee to recover from appellant $ 517 arising out of "demand fees" collected and received by him as treasurer of said county on account of demands made by him during his term of office for the payment of delinquent taxes. The complaint was filed in the Clinton Circuit Court on September 16, 1904, and therein appellee alleged that he was elected treasurer of said county at the November election, 1900, and held the office from January 1, 1901, until January 1, 1903; that it was part of his duties to make demands upon the taxpayers when their taxes became delinquent; that many of the taxpayers of said county of Clinton, during his term of office, permitted their taxes to become delinquent, and that he made demand for the payment thereof during his term of office; that he was permitted to charge and receive from each taxpayer who paid delinquent taxes upon demand, as an emolument of his office, the sum of twenty-five cents for each and every demand made as aforesaid; that on the quarter ending March, 1901, he collected of such demand fees the sum of $ 12. (Here the itemized account of the demand fees collected by him is continued on to December 31, 1902, showing that he collected in all the sum of $ 517.) It is further averred that each and all of said several sums of money belonged to the plaintiff, and that he was at said time, and yet is, entitled to receive the same as the emoluments of his office; that when he made a settlement with the defendant county he did not retain and keep said sums of money, nor any part thereof, but that he left the full amount aforesaid in the treasury of said county, and the same is yet in possession of the defendant, and defendant holds same to the plaintiff's use; that on October 24, 1904, he filed his claim with the auditor of the county, in the commissioner's court, for said money; that his said claim was rejected and disallowed by the board of commissioners on November 9, 1904. Wherefore he demands $ 550. To this complaint appellant demurred for want of facts. Its demurrer was overruled and exceptions duly reserved. Answer in three paragraphs, the first of which was the general denial. The latter was subsequently withdrawn and a demurrer was sustained to the second and third paragraphs of the answer. Thereupon appellant elected to stand upon its demurrer to the complaint, and on the demurrer to the second and third paragraphs of the answer and the rulings of the court relating thereto, and refused to plead further. Judgment was thereupon rendered in favor of appellee on the pleadings in the sum of $ 517.

The cardinal question involved in this appeal is: Does the money arising out of the demand fees collected by appellee, which he appears to have paid over to the county treasurer, and which he is now seeking to recover, belong to him, or does it belong to the county, and was appellee required to account for the same and pay it over to the county treasurer? If the latter view is sustained, then appellee has no basis whatever upon which to predicate his action. It is true that the complaint alleges that the county was not entitled to the money arising out of these fees, that the money was the property of appellee, and that it was by him paid over to the county for his own use and benefit. These averments are more in the nature of conclusions of law than statements of facts, and the demurrer to the complaint must be regarded as admitting as true only such facts as are well pleaded, and not conclusions of law. We are advised by appellee's counsel that this action is bottomed upon section 119 of the fee and salary act of 1895, as amended in 1897 (Acts 1897, p. 171, § 6525 Burns 1901). This section reads as follows: "After the third Monday of April the treasurer shall cause a list to be made of the delinquents, with the amount due from each, and with a separate column headed 'return,' which list shall be certified to be correct by the county auditor. He shall then proceed with such list, which, when so certified, shall be a sufficient authority, and have the same force and effect as an execution, and call either in person or by deputy, upon every person named in the duplicate who is delinquent, and who resides in the county, and he shall make a demand for the amount of such delinquent taxes, and the penalty thereon, of each resident delinquent, and if the taxes and penalty are not paid on such demand, he shall proceed immediately to levy upon sufficient personal property of such delinquent to pay such taxes, penalty and the cost of sale, and to sell the same in the manner, and at the place hereinafter provided. In case such delinquent tax and penalty is paid on demand, such treasurer shall charge and receive from such delinquent, in addition to the taxes and penalty, the sum of twenty-five cents, and where a levy is made, he shall charge and receive, in addition to his other costs, the sum of fifty cents for such demand. When he can find no personal property of such delinquent within the county upon which to levy, after diligent search therefor, he shall make opposite to the name of such persons on said lists in the column marked 'return,' a special return setting forth the fact that he had made diligent search in the county for personal property of such delinquent, and was unable to find any upon which to levy for the payment of the taxes due thereon, which return shall be prima facie evidence of the facts therein cited. * * * Each county treasurer shall be allowed, in addition to the salary provided by this act, a commission of six per cent upon all delinquent taxes collected by him." By this amended section the commission of four per cent originally allowed the treasurers for collecting delinquent taxes was increased to six per cent.

Section 121 of the fee and salary act of 1895 (Acts 1895, [169 Ind. 473] p. 319, § 6527 Burns 1901), reads as follows: "For levying and making sale of personal property to pay delinquent taxes in addition to the fee for the demand upon the resident delinquent, the treasurer shall be allowed the same fee and charges as are allowed by law to constables for making levy and sale of personal property on execution and expenses for taking care of property levied on. The board of commissioners shall in no case allow the county treasurer his salary, or any installment or part thereof, until they are fully satisfied the three sections last above and all other laws requiring the treasurer to collect delinquent taxes have been fully and strictly complied with." (Our italics.) Of course the latter section contemplates that the treasurer shall be reimbursed for the expenses which he actually incurs for taking care of the property of the delinquent taxpayers upon which he has levied. Appellee's counsel contend that neither § 6525, supra, nor § 6527, supra, purports to "make or unmake title to the fees which the county treasurer is authorized thereunder to collect." It is argued that this is demonstrated by the fact that the legislature, in the act in question, in regard to the fees to be taxed and collected by the other officials, viz., clerk of the circuit court, sheriff, auditor and recorder, who are each required to pay such fees into the county treasury, has expressly provided that these officials shall, on behalf of their respective counties, "tax and charge, upon the proper books to be kept for that purpose * * * the fees and amounts provided by law on account of services performed," but that such fees shall in no sense belong to or be the property of such officer, but shall belong to and be the property of the county. It is therefore argued that there is a radical difference between the provisions of the fee and salary law of 1895 relative to the title of the fees charged and collected by the above-mentioned officers and the title of the demand and levy fees which are to be charged and collected by the treasurer. It is insisted that because of the absence of the above-mentioned provisions of the act which relate to clerks, sheriffs, auditors and recorders, and because they expressly deny the right or title of these officers to the fees required to be charged and taxed by them, the legislature must be held to have intended to authorize county treasurers to retain as their own the demand and levy fees.

In an attempt to discover the intention of the legislature in respect to the ownership of the fees in controversy, possibly if we were confined alone to the provisions of §§ 6525, 6527, supra, without being permitted to refer to or consider other provisions of the act of 1895, we might be justified in concluding that by the provisions which declare that the "treasurer shall charge and receive from such delinquent * * * the sum of twenty-five cents," and that "he shall charge and receive, in addition to his other costs, the sum of fifty cents for such demand, and that he shall be allowed the same fee and charges that are allowed by law to constables for making levy and sale of personal property on execution, the legislature intended to permit the treasurer to charge and receive such fees as his own. The purpose of...