Bolivar Tp. Bd. of Finance of Benton Cnty. v. Hawkins

• Decision Date: 03 July 1934
• Docket Number: No. 26327.,26327.
• Citation: 207 Ind. 171,191 N.E. 158
• Parties: BOLIVAR TP. BOARD OF FINANCE OF BENTON COUNTY v. HAWKINS et al.
• Court: Indiana Supreme Court

207 Ind. 171

191 N.E. 158

BOLIVAR TP. BOARD OF FINANCE OF BENTON COUNTY

v.HAWKINS et al.

No. 26327.

Supreme Court of Indiana.

June 28, 1934.

Dissenting Opinion July 3, 1934.

Appeal from Benton Circuit Court; C. M. Snyder, Judge.

Action by Boliver Township, Board of Finance of Benton County, against Avery Hawkins and another. From a judgment for defendants, plaintiff appeals.

Affirmed.

Berry & Nolin, of Fowler, for appellant.

Stuart & Stuart, of Lafayette, Fraser & Isham, of Fowler, Randolph & Randolph, of Lafayette, Ernest Merrick Hawkins, of Fowler, Dix & Dix, of Terre Haute, and Walker & Walker, of Evansville, for appellees.

HUGHES, Chief Justice.

This is an action brought by the appellant to recover the sum of $28,977.24, together with interest and attorney fees from the appellees as sureties on a depository bond given to secure the public money on deposit in the State Bank of Otterbein, Otterbein, Ind., belonging to Bolivar civil township and Bolivar school township, Benton county, Ind., at the time of the failure and closing of said bank, which bond was given in compliance with the provisions of the Public Depository Act of the state of Indiana, being chapter 222 of the Acts of 1907, as amended. And the particular questions involved being whether appellees, uncompensated individual sureties upon the depository bond of the State Bank of Otterbein, given to secure the deposit of funds belonging to Bolivar civil township, are relieved from liability by the terms and provisions of chapter 78, Acts 1933, p. 488, the depository bond having been given subsequent to January 1, 1927, to wit, January 6, 1931.

The complaint averred, among other things, that on the 6th day of January, 1931, the board of finance of Bolivar township met in regular session for the purpose of selecting a depository for the funds of said township and said school township; that the State Bank of Otterbein filed its proposal to receive deposits of the public funds of Bolivar township and Bolivar school township in a sum not to exceed $60,000 at any time; that said bank at said time tendered and delivered to the board of finance, security for such deposits, a personal bond in the sum of $35,000, the said bank being principal and said defendants sureties thereon; that said board of finance accepted the proposal of said bank, and funds were deposited in said bank; that on June 6, 1931, the bank was closed and placed in the control of the state banking department, and a receiver was appointed therefor; that on June 6, 1931, the said township had on deposit in said bank the sum of $30,477.24; that said bank was indebted to said township for the payment of said sum; that a demand had been made upon the receiver and each of defendants for payment, but payment has been refused; that the sum of $5,500 has been paid on said principal.

The appellees filed an answer to the complaint of appellants admitting many of the allegations of the complaint. Among other things alleged in the answer, it is asserted all of the funds on deposit except $5,203.54 was raised by general taxation; that said amount of $5,203.54 was raised otherwise than by general taxation in said Bolivar township and Bolivar school township; that payments of $5,500 had been made on said bond, and that said amount exceeded the amount of said deposit representing funds not raised by general taxation; that said bond is a “Personal Bond,” and said defendants became obligated thereon, without compensation and pursuant to chapter 222 of the Acts of 1907 as amended; that, by reason of an act of the General Assembly of 1933, the same being chapter 78, Acts of 1933, p. 488, the said defendants and each of them are relieved, released, and discharged from any liability on said bond.

The appellant, plaintiff below, filed a demurrer to the answer of appellees, defendants below. The demurrer was overruled and the plaintiff refused to plead further, and judgment was rendered for defendants.

The appellant's assignment of error is as follows:

(1) The trial court erred in overruling appellant's demurrer to the appellees' answer and supplemental answer.

(2) The trial court erred in rendering judgment against the appellant that it take nothing by its complaint.

The title of the act of 1933, which is in question, is as follows: “An act entitled ‘An act concerning liability of sureties on public depository bonds given to secure deposits of public funds, granting relief in certain cases from liability on such bonds, upon judgments obtained thereon, and upon any evidence of indebtedness given in lieu of such liability, to certain sureties and their heirs, legatees, devisees and personal representatives, providing for the application of payments made or which may be made on such bonds, deposits or judgments, providing for the application and disposition of certain payments and the issuance and acceptance of warrants therefor, saving rights of contribution and subrogation in certain cases and declaring an emergency.”’

Section 1 of said act is as follows:

“ Public Depository Bonds-Freehold Sureties-Release and Discharge.

“Section 1. Be it enacted by the general assembly of the State of Indiana, That any and all persons and the heirs, legatees, devisees and personal representatives of any and all persons who were accepted as freehold sureties and became obligated, without compensation, on any personal bond or bonds given pursuant to chapter 222 of the Acts of 1907, as amended, to secure deposits in a bank, banking institution or trust company, designated, on or after January 1, 1927, as a public depository of public funds belonging to any county, city, town, school corporation or any other municipal or political subdivision, other than the state, are hereby relieved, released and discharged from any and all liability on or on account of such bond or bonds to the extent that deposits secured by such bond or bonds represent funds raised by general taxation in the municipal corporation or political subdivision making such deposits.” (Italics are ours.)

In this opinion, we shall consider the questions involved in the order presented by appellant in its brief. Its first proposition is: The act is unconstitutional because it violates section 19 of article 4 of the Constitution of the state of Indiana. Said section is as follows: “Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.” Section 122, Burns' 1926.

Giving the language as set out above a reasonable construction, can it be said the act violates the same? We do not believe so. We believe that the act embraces but one subject and matters properly connected therewith. It is clear that the subject of the act is the liability of sureties on public depository bonds, and the other provisions of the act are properly connected therewith. The provisions relating to the subject of the act are: The relief in certain cases from liability on such bonds, relief upon judgments obtained on such bonds, and upon evidence of indebtedness given in lieu of such liability, relief to certain sureties, their heirs, legatees, and devisees; providing for application of payments made on such bonds or judgments and a provision for the application and disposition of certain payments and the issuance and acceptance of warrants therefor. All of these provisions relate to, and are properly connected with, the subject-matter.

As is said in the case of Board v. Scanlan, 178 Ind. 142, page 145, 98 N. E. 801, 802: “It is not necessary that all matters connected with, or germane to, the subject of an act shall be embraced in the title. It is sufficient that the title shall ‘embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title’ (Const. art. 4, § 19), and that it is of such character as to fairly apprise the legislators and the public in general of the subject-matter of the legislation so as to lead to inquiry into the body of the bill or indicate some particular branch of legislation as a head under which the particular provisions of the act may be reasonably looked for, and it need not set out all the matters properly connected with or germane to the subject-matter of the act.” A large number of cases are collected and cited, in the foregoing case, on the proposition of law as just stated, and we do not consider it necessary to cite them here.

In the case just cited the court also said: “The word ‘subject’ in the Constitution, art. 4, § 19, indicates the thing about which the legislation is had, and the word ‘matters' the incident or secondary things necessary to provide for its complete enforcement,” and citing many cases.

We believe that the title to the act in question fully meets the requirements of the constitutional provision as heretofore set out.

The second proposition of the appellant is: That the act is unconstitutional, in that it violates section 1 of the Fourteenth Amendment of the Constitution of the United States and section 23, article 1, of the Constitution of Indiana. Section 1 of Amendment 14 of the Constitution of the United States provides: “*** No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. ***” And section 23, article 1, of the Constitution of Indiana, provides that: “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.”

We cannot believe that it can be seriously contended that the act violates section 1 of the Fourteenth Amendment of the United States Constitution. The plaintiff, in the instant case, is a board or agency of the state created by the state to...