City of Lebanon v. Dale
| Decision Date | 01 February 1943 |
| Docket Number | 16941. |
| Citation | 46 N.E.2d 269,113 Ind.App. 173 |
| Parties | CITY OF LEBANON v. DALE. |
| Court | Indiana Appellate Court |
Thomas O. Beck and Parr, Parr & Parr, all of Lebanon, for appellant.
Ira M. Sharp and Roscoe Hollingsworth, both of Thorntown, for appellee.
This action was brought by the appellee, Carl W. Dale, in the Boone Circuit Court to recover money he claims to be due him from the appellant, City of Lebanon, for so-called "additional salary" alleged to have been earned by him while mayor of said city for services rendered in connection with the operation of its water works and sewage disposal plant.
As the sole question presented by this appeal goes to the sufficiency of the complaint, we deem it advisable to set out the material allegations thereof in detail. In substance it is alleged that the appellee was elected mayor of the city of Lebanon, a fifth class city, in the general election of 1934. He qualified and took office on January 1, 1935, and served continuously thereafter until the first day of January, 1939 during all of which time he performed the duties imposed by law upon mayors of cities of the fifth class. That the appellant, at all times while the appellee so served as its mayor, owned and operated a water works and a sewage disposal plant and under certain provisions of Chapter 233 of the Acts of the General Assembly of the State of Indiana for the year 1933, the appellee alleges he is entitled to the sum of $480 per year as compensation for the additional duties and responsibilities imposed upon him by reason of the ownership and operation of said public utilities by the appellant. That notwithstanding the provisions of the law above mentioned the common council of the city of Lebanon failed to pass an ordinance fixing the additional salary therein provided, and that there is now due and owing to him from the appellant the sum of $1,920 together with interest at six per cent per annum from the 18th day of September, 1940, upon which date he made formal demand for payment. To this complaint a demurrer for want of facts was filed and overruled by the court. The appellant refused to plead further whereupon the court rendered judgment for the appellee in the sum of $1,920 and costs, and in due course this appeal was perfected.
Appellee's cause of action is founded directly upon Section 21 of Chapter 233 of the Acts of the General Assembly for 1933, Section 48-1233, Burns' 1933, Section 11414, Baldwin's 1934, and his complaint, if it is to be held sufficient, must plead a cause clearly within the purview of that statute as it may be regarded as settled law in this state that one who seeks the benefits of a statute must bring himself squarely within its provisions. Eddy v. Honey Creek Township of White County, 1917, 63 Ind.App. 527, 114 N.E. 783; Pabst Brewing Co. v. Schuster et al., 1914, 55 Ind.App. 375, 103 N.E. 950; Watts v. City of Princeton, 1911, 49 Ind.App. 35, 96 N.E. 658. Whether or not the appellee has done so in the instant case depends wholly upon the construction of the statute upon which his action rests, considered in the light of and in relation to other pertinent legislation. The statute involved, or that portion pertinent to the question under consideration, reads as follows:
The appellant earnestly contends that under the terms of this statute the right of the appellee to a salary in addition to his annual salary as mayor of the city of Lebanon rests wholly within the discretion of the common council of said city, and as his complaint affirmatively shows that no ordinance in the exercise of such discretion was ever passed it is fatally defective. The appellee with equal earnestness insists that said statute is a mandate to the common council of the city of Lebanon to provide such additional salary by the timely passage of an appropriate ordinance, and the failure of the common council so to do is immaterial to his cause of action because,...
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