Finerty v. State ex rel. School City of Gary

• Decision Date: 15 February 1938
• Docket Number: 26952.
• Citation: 12 N.E.2d 941,213 Ind. 470
• Parties: FINERTY, County Auditor, et al. v. STATE ex rel. SCHOOL CITY OF GRAY.
• Court: Indiana Supreme Court

12 N.E.2d 941

213 Ind. 470

FINERTY, County Auditor, et al. v. STATE ex rel. SCHOOL CITY OF GRAY.

No. 26952.

Supreme Court of Indiana

February 15, 1938

Appeal from Superior Court, Lake County; Homer E Sackett, judge.

George E. Hershman, of Crown Point, for appellants.

John G. Capouch, of Gary, for appellee.

SHAKE Judge.

This is an action brought by the State, on the relation of the School City of Gary, against the appellant Finerty, as auditor, and the appellant Conter, as treasurer, of Lake county, Ind. The action is in mandate to compel appellants to pay over to appellee an undistributed portion of the 'county dog fund.' The court overruled the appellants' demurrer to the complaint. The appellants refused to plead further and a judgment was rendered in favor of the appellee. This appeal challenges the correctness of the court's ruling on the demurrer to the complaint.

The complaint, which is in one paragraph, alleges, in substance that there is a surplus in the county dog fund of Lake county, after the payment of all claims for damages to livestock and poultry properly chargeable against said fund that appellants are about to distribute said surplus under the provisions of an act of the General Assembly approved March 9, 1937, Acts of 1937, c. 133, §§ 10 and 11, Burns' Ann.St.1933, §§ 16-326 and 16-327, Pocket Supp.; Baldwin's Ind.St.1934, §§ 3811-10 and 3811-11, May 1937, Supp., whereas, said fund should be distributed under the provisions of the Act of 1927, c. 176, §§ 10, 11, as amended and approved on March 9, 1929, Acts of 1929, c. 58, §§ 1 and 2, Burns' Ann.St.1933, §§ 16-312 and 16-313; Baldwin's Ind.St.1934, §§ 3821 and 3822; that the taxes from which said fund was accumulated were collected pursuant to the act of 1929 and before the enactment of the act of 1937; that the tax levy for the support of the public schools of the City of Gary, to be collected during the year 1937, was established upon a basis to include the distributive share of said School City from the county fund; that the appellants are now threatening to pay over the surplus in said fund to the auditor of state; that the School City will not be able to meet its contract obligations and maintain and operate its schools without its proportionate share of said dog tax funds; and that its credit will be impaired, if said funds are paid to the state auditor.

The demurrer is for want of facts, and the memorandum attached raises the proposition that the surplus in the county dog tax fund of Lake county should be paid to the state auditor, pursuant to the provisions of the act of March 9, 1937; the complaint having been filed in the court below on March 11th.

The act of 1929 provides for the levy and collection of dog taxes in the State of Indiana. Such taxes are collectible by the township assessor, and the act directs that the proceeds from said collections shall be reported to the county auditor and paid over to the township trustees; that said funds shall be used by the trustees to pay claims for damages to livestock and poultry killed or maimed by dogs; that on March 1st of each year the trustees shall pay over the surplus in said fund, excepting the sum of $100, to the treasurer of the county. The funds so paid to the county treasurer by the township trustees constitute a 'county dog fund,' and on the second Monday in March of each year the county treasurer is directed to make a distribution thereof to the township trustees sufficient to pay and discharge any deficit in their respective township dog funds. When said deficits have been met, the surplus left in the county fund 'shall be distributed for the schools of the county in the same manner the common school revenue of such county is distributed.'

The act of 1937 repealed the act of 1927, as amended in 1929, and established a 'State dog account,' to be administered by the auditor of state. This act provides that on the first Monday in March of each year, the township trustees shall pay over to the county treasurer the surplus funds in their respective dog tax accounts, in excess of $100. The county treasurer shall thereupon distribute among the townships of the county sufficient funds from said dog tax account to pay the deficits existing in said township funds. Thereafter, on the first Monday in May of each year, the county auditors of the several counties are required to pay over to the auditor of state the surplus in the several county dog funds. The auditor of state is directed to use so much of said funds as is necessary to pay any deficits in the county dog funds of the respective counties; and it is further provided that 'all money in excess of fifty thousand dollars [$50,000] remaining in the state dog account after such annual distribution shall have been made, * * * shall be transferred by the auditor of state to the state school revenue fund.' Burns' Ann.St. § 16-327.

This appeal presents the single question as to whether the surplus in the county dog fund of Lake county on March 11, 1937 should be distributed for the schools of the county in the same manner the common school revenue of such county is distributed, as provided in the act of 1929, or whether said county fund should be paid to the auditor of state, as provided in the act of 1937. It is appellee's...