Miller v. State ex rel. City of Indianapolis

• Decision Date: 24 May 1886
• Docket Number: 13,033
• Citation: 7 N.E. 209,106 Ind. 415
• Parties: Miller, Treasurer, v. The State, ex rel. the City of Indianapolis
• Court: Indiana Supreme Court

7 N.E. 209

106 Ind. 415

Miller, Treasurer, v. The State, ex rel. the City of Indianapolis

No. 13,033

Supreme Court of Indiana

May 24, 1886

From the Marion Superior Court.

The judgment is affirmed, with costs.

O. B Hord, A. W. Hendricks, A. Baker, E. Daniels, J. S. Duncan, C W. Smith and J. R. Wilson, for appellant.

W. L Taylor, F. Winter and S. J. Peelle, for appellee.

OPINION

Howk, C. J.

On the 22d day of February, 1886, appellee's relator, the City of Indianapolis, filed in the clerk's office of the Marion Superior Court its verified complaint, wherein it alleged that it was and for many years had been an incorporated city, organized and existing under the general laws of this State for the incorporation of cities; that on and before the 1st day of January, 1886, appellant Miller was and since had been the duly elected, qualified and acting treasurer of Marion county; that pursuant to law, on such 1st day of January, 1886, the office of treasurer of such city of Indianapolis became and was abolished, and the duties of the theretofore city treasurer were, so far as possible transferred to the treasurer of Marion county; that on such 1st day of January, 1886, Isaac N. Pattison, as treasurer of such city of Indianapolis, retired from such office, and at the same time, pursuant to law, delivered and turned over to appellant Miller, as such county treasurer, all the funds, bonds, securities, and other property then in his possession, as such city treasurer; that on such last named day, such retiring city treasurer also delivered to appellant, as such county treasurer, and as the successor of such city treasurer, pursuant to law, the tax-duplicate and delinquent tax lists of and for such city of Indianapolis, theretofore duly prepared and certified, for the purpose of having the appellant, as such county treasurer, collect the taxes and penalties thereon, and do whatever else was required of him by law; and that appellant, as such county treasurer, receipted therefor to such retiring city treasurer, which receipt was on the same day filed with the city clerk of such city of Indianapolis.

And appellee's relator further averred that the appellant, as such county treasurer, on such last named day, for and on behalf of such city, proceeded to collect, and had since been collecting, for such relator, the taxes, penalties and other charges, contained in such city tax-duplicate and delinquent tax lists so received by him, and had on every day since collected thereon large sums of money, for the use and benefit of such city, the exact amount whereof the relator did not know and could not give; that it was the duty of appellant, as such county treasurer, to receive all moneys paid to such city for licenses and special privileges, and credit such city therewith; that among other duties required of appellant, by virtue of his office as treasurer of Marion county, and as the successor in office of such retiring treasurer of the city of Indianapolis, under section 33 of the general law of March 14th, 1867, for the incorporation of cities (section 3083, R. S. 1881), and section 2 of an act entitled "An act concerning taxation for city and school purposes in cities containing a population of over seventy thousand, as shown by the last census of the United States; to abolish the offices of city assessor and city treasurer in such cities, and provide for the discharge of the duties of such offices, and repealing laws in conflict therewith," approved February 21st, 1885, and other laws, was the duty to prepare and deliver to the clerk of such city of Indianapolis, on the last day of each month, a statement of all receipts and disbursements made by appellant, on account of such city, during such month, showing the balance in his hands, as such treasurer, belonging to each fund, general and special, of such city, and to deliver to such city clerk all the city orders, redeemed and cancelled by appellant on account of such city, during the same period, taking the city clerk's receipt therefor.

But appellee's relator averred that appellant Miller, notwithstanding his plain duty in the premises and the great necessity there was for the relator's officers to know the condition of the finances of such city, had failed and refused to make any report to any one, in any manner whatsoever, as to the moneys so collected by appellant, on the tax-duplicate and delinquent tax lists of such city, and belonging to such relator, either on the last day of January, 1886, or at any prior or subsequent time, greatly to the injury of such relator; and that appellant wrongfully refused to make such report, although requested so to do by resolution, adopted by the common council and board of aldermen of such city and served on such appellant by delivering to him a certified copy thereof. Wherefore, etc.

Appellant voluntarily appeared, and, waiving the issue and service of an alternative writ of mandate, demurred to the relator's verified complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was overruled by the court at special term. Appellant excepted to this ruling, and declined to answer over, and thereupon judgment was rendered at special term awarding the issue of a peremptory writ of mandate against the appellant, as prayed for in the relator's complaint. On appeal, the judgment of the court at special term was in all things affirmed by the general term, and from the judgment of the court in general term this appeal is now here prosecuted.

The question for our decision, as it was of the general term, may be thus stated: Did the court at special term err in overruling appellant's demurrer to the relator's verified complaint, and in awarding thereon a peremptory writ of mandate against him, as prayed for in such complaint?

The city of Indianapolis, the appellee's relator, is and has been for more than nineteen years past an incorporated city, organized and existing under the general law of this State "to provide for the incorporation of cities, prescribing their powers and rights, and the manner in which they shall exercise the same and to regulate such other matters as properly pertain thereto," approved March 14th, 1867. Acts of 1867, pp. 33 et seq. Since the approval of such general law, several sections thereof have been, at different times, specifically amended by the General Assembly. In addition to these amendments, the Legislature has from time to time enacted other laws, general in form, but, by reason of their provisions, as much local to the city of Indianapolis as if such city had been expressly named therein, which other laws, notwithstanding the positive inhibition of our State Constitution against the passage of "local or special laws," have been upheld by our decisions as constitutional and valid legislation, and must be regarded as amendatory of or supplemental to the general law of this State of March 14th, 1867, "for the incorporation of cities," in so far at least as such city of Indianapolis is concerned. Groesch v. State, 42 Ind. 547; Hanlon v. Board, etc., 53 Ind. 123; McLaughlin v. Citizens Building, etc., Association, 62 Ind. 264; Heanley v. State, 74 Ind. 99.

In section 8 of such general law of March 14th, 1867, as such section was amended by an act approved March 6th, 1877 (section 3043, R. S. 1881), it is provided that the officers of a city, incorporated under such general law, shall consist, among others, of an assessor and treasurer, whose terms of office shall commence on the first Monday in September, following the general election in May, and continue for two years. Section 33 of such general law of March 14th, 1867, for the incorporation of cities (section 3083, R. S. 1881), provides as follows:

"The treasurer shall, on the last day of each month, furnish to the clerk a statement of all the receipts and disbursements made by him during the month, and the balance then in the treasury belonging to each fund, general and special, and also deliver to him all the orders redeemed and cancelled by him during the same period, taking the clerk's receipt therefor; which statement with the orders redeemed, the clerk shall lay before the common council at its next meeting, to be disposed of as the common council may direct. The treasurer shall, at least fifteen days before any annual election, and at all other times when so required by the common council, render a full account of the receipts and expenditures for the current year, and the general condition of the...