Gross v. Bd. of Com'rs of Whitley Cnty.

• Decision Date: 22 May 1902
• Citation: 158 Ind. 531,64 N.E. 25
• Parties: GROSS v. BOARD OF COM'RS OF WHITLEY COUNTY.
• Court: Indiana Supreme Court

158 Ind. 531

64 N.E. 25

GROSS

v.BOARD OF COM'RS OF WHITLEY COUNTY.

Supreme Court of Indiana.

May 22, 1902.

Appeal from circuit court, Wabash county; H. B. Shively, Judge.

Suit by the board of commissioners of Whitley county against John Gross to recover the amount of a claim unlawfully paid to him as county treasurer. From a judgment for plaintiff, defendant appeals. Transferred from appellate court under Act March 13, 1901 (Acts 1901, p. 590). Affirmed.Thomas R. Marshall, Wm. F. McNagny, and P. H. Clugston, for appellant. F. J. Heller and B. E. Gates, for appellee.

DOWLING, J.

Appellant was elected treasurer of Whitley county, at the general election held in November, 1890, and was re-elected to that office at the November election, 1892, serving two full terms. He was allowed and paid his salary of $1,800 per year as fixed by the act of 1891. After the expiration of his second term, he filed with the board of commissioners of said county a claim for $2,360.31, which he demanded in addition to the $3,600 he had received, on the ground that he was entitled to compensation under the fee and salary law of 1879. The board allowed and paid the claim out of county funds. This suit was brought to recover the sum so paid.

The complaint was in three paragraphs, the first of which alleges that the appellant was in November, 1892, duly elected treasurer of said county; that he served an such treasurer from December 1, 1892, until December 1, 1894; that his salary as fixed by the act of 1891 was $1,800 per year, payable quarterly; that at the end of each quarter year, during his said term, he filed his bill for his said salary, which was allowed and paid to him; that as such salary for said two years he received $3,600; that at the expiration of his said term he made his final settlement, and turned over to his successor all cash, papers, books, etc., belonging to his said office; that after such final settlement he filed with the board of commissioners of said county a claim for $2,360.31 for a pretended balance due him on account of commissions on current and delinquent taxes collected by him during the years 1893 and 1894, and paid over by him; that said illegal claim was allowed and paid by said board out of the funds of said county; that appellant was justly indebted to said county for said sum wrongfully paid to him, etc. The second paragraph is substantially the same as the first, except that it avers that appellant, in addition to the salary allowed him by the statute, illegally taxed, against the county, fees not authorized by law to the amount of $2,360.31, which were allowed and paid to him upon the order of the board. The third paragraph contains the same allegations as the first and second, but, with more particularity, charges that appellant collected, during the two years he was treasurer, $350,773.42 on account of current and delinquent taxes; that he unlawfully charged the county 1 per cent. on the first $100,000 so collected, and one-half of 1 per cent. on the excess over $100,000, in addition to his salary of $1,800 per year; that his salary was regularly demanded by him, and was paid to him, but that the board of commissioners wrongfully and illegally allowed and paid to him the sum of $2,448.81 upon said illegal and unauthorized claim, the payment of which has been demanded, etc. The venue of the cause was changed to Huntington county, and subsequently to Wabash county. Demurrers to the several paragraphs of the complaint were filed and overruled. The appellant filed an answer in four paragraphs, the first being a denial, and also his cross complaint in two paragraphs. Appellee demurred to the second, third, and fourth paragraphs of the answer, and to the first and second paragraphs of the cross complaint. These demurrers were sustained. The appellant thereupon withdrew his answer in denial, and, refusing to plead further, judgment was rendered against him. The errors assigned and not waived by failure to discuss them are the rulings upon the demurrers to the answer and cross complaint.

While the answer and cross complaint are of great length, the legal effect of each of them may be stated in a few words. They assert that the appellant was entitled to compensation under the act of 1879; that by the decision of the supreme court of Indiana in State v. Boice, 140 Ind. 506, 39 N. E. 64, 40 N. E. 113, the act of 1891 was declared invalid,and that, while this decision stood, the appellant had the right to claim compensation under the act of 1879; that the act of 1893, amending the act of 1891 and supplying its defects, caused the act of 1891 to operate prospectively only, and that, until the act of 1893 took effect, appellant had the right to charge and collect fees under the act of 1879; that as a consequence of the decision in State v. Boice, holding the act of 1891 invalid, the appellant had a contractual right to compensation under the act of 1879 which could not be devested by a subsequent decision of this court declaring that statute constitutional; that appellant contributed to the expenses of the suit in State v. Boice, and thereby made himself a party, and became entitled to the benefit of the decision sustaining the claim of the county treasurer to fees under the act of 1879; and that the appellant having been enjoined from collecting $1,600 of taxes assessed against railroad property during his first term, and having collected such taxes during his second term, he was entitled to fees for making such collection under the act of 1879. Neither the answer nor the cross complaint stated facts sufficient to sustain the claim of the appellant to fees under the act of 1879. The act of 1891 was constitutional, and it repealed the fee and salary law of 1879. Walsh v. State, 142 Ind. 357, 41 N. E. 65, 33 L. R. A. 392;Legler v. Paine, 147 Ind. 181, 45 N. E. 604;Harmon v. Board, 153 Ind. 68, 54 N. E. 105;Board v. Heaston, 144 Ind. 583, 41 N. E. 457, 43 N. E. 651, 55 Am. St. Rep. 192;Henderson v. State, 137 Ind. 552, 36 N. E. 257, 24 L. R. A. 469. It fixed the compensation of the treasurer of Whitley county at $1,800 per year, and in the clearest manner prohibited the payment of any greater sum to that officer by way of compensation for his official services. Acts 1891, p. 439, § 113; Id. p. 452, § 135. The county officers named in the act can receive no compensation other than that provided therein. Acts 1891, p. 427, § 21. The act of 1893, amending the act of 1891, had the same effect as if incorporated in the original act, and the said act of 1891 fixed the salaries and compensation of the officers named in it from the time it went into force. Sudbury v. Board, 62 N. E. 45, 157 Ind. 446. The appellant was entitled to such compensation only as the statute allowed him. Board v. Johnson, 127 Ind. 238, 26 N. E. 821;Wood v. Board, 125 Ind. 270, 25 N. E. 188;State v. Roach, 123 Ind. 167, 24 N. E. 106;Board v. Barnes, 123 Ind. 403, 24 N. E. 137.The decision in State v. Boice, 140 Ind. 506, 39 N. E. 64, 40 N. E. 113, afterwards overruled by Walsh v. State, 142 Ind. 357, 41 N. E. 65, 33 L. R. A. 392, did not operate to give county officers a right to charge and collect fees under the act of 1879 during the time it remained unreversed. The rule that contract rights acquired under an interpretation of the law made by the supreme court are not devested by a subsequent decision to the contrary does not apply to the claims of public officers to fees or salaries established by law. Such officers have no vested interest in the offices, and their right to such fees and salaries is not founded in contract. Sudbury v. Board, 62 N. E. 45, 157 Ind. 446, 455. At a very early period in this state it was held that offices were not grants or contracts, the obligations of which could not be impaired, but rather trusts or agencies, which were completely within the power of the legislature, except so far as the constitution of the state forbade interference with them. Coffin v. State, 7 Ind. 157;Gilbert v. Board, 8 Blackf. 81. The doctrine that the incumbent has a vested interest in a public office, its fees and emoluments, has been denied by nearly every court in this country. See the very full note upon Hoke v. Henderson, 25 Am. Dec. 701, and cases cited. See, also, 19 Am. & Eng. Enc. Law, 526. The rule that a judicial construction of a statute becomes a part of the statute, and that rights acquired under it cannot be impaired by any subsequent act of the legislature, or decision of the courts altering the construction of the law, has never been extended, so far as we are advised, to other than contract rights, or rights arising under the statute so upheld as a rule of property. Insurance Co. v. Debolt, 16 How. 416, 14 L. Ed. 997;Taylor v. Ypsilanti, 105 U. S. 60, 26 L. Ed. 1008;Douglass v. Pike Co., 101 U. S. 677, 25 L. Ed. 968;Anderson v. Santa Anna Tp., 116 U. S. 356, 6 Sup. Ct. 413, 29 L. Ed. 633;Stephenson...