Mueller v. Board of Commissioners of County of Marion
| Decision Date | 22 April 1920 |
| Docket Number | 10,316 |
| Citation | 127 N.E. 15,73 Ind.App. 196 |
| Parties | MUELLER v. BOARD OF COMMISSIONERS OF THE COUNTY OF MARION |
| Court | Indiana Appellate Court |
From Marion Superior Court (a1,068); T. J. Moll, Judge.
Action by Charles H. Mueller against the board of commissioners of the county of Marion. From a judgment for defendant, the plaintiff appeals.
Reversed.
L. R Newgent and Omar S. Whiteman, for appellant.
Emsley W. Johnson and Joseph W. Hutchinson, for appellee.
Action by appellant, a justice of the peace of Center township Marion county, Indiana, against appellee, to collect certain fees claimed to be due and unpaid, for services rendered by appellant in holding insanity inquests, as required of him by § 3682 et seq. Burns 1914, § 2810 R. S. 1881.
There was a demurrer to the complaint, which was sustained and, appellant failing to plead further, but electing to stand by his complaint, there was a judgment against him that he take nothing. From this judgment, this appeal.
The only error assigned is the court's ruling on the demurrer. Appellee contends that the court has no jurisdiction, for the reason that it does not appear that the claim sued on had first been presented to the board of commissioners and disallowed by the board, as provided in §§ 6006-6008 Burns 1914, §§ 5760, 5761 R. S. 1881; Acts 1897 p. 187. It is true, as contended, that claims against the county must first be presented to the board of commissioners for allowance or disallowance before suits can be filed thereon, but, after the action of the board in disallowing the claim, the claimant may at his option appeal, or he may bring an original action, § 6019 Burns 1914, § 5769 R. S. 1881; and it is not necessary to allege in the complaint that these steps have been taken. Bass Foundry, etc., Works v. Board, etc. (1888), 115 Ind. 234, 17 N.E. 593; Board, etc. v. Leggett (1888), 115 Ind. 544, 18 N.E. 53; Board, etc. v. Brod (1891), 3 Ind.App. 585, 588, 29 N.E. 430; Board, etc. v. Osburn (1892), 4 Ind.App. 590, 31 N.E. 541.
It is next contended by appellee, as appears by its second specification of memorandum with its demurrer, that appellant is entitled to no fees for acting as an examining officer in holding insanity inquests, or in delivering the transcripts to the clerk of the Marion Circuit Court, for the reason that the statutes of Indiana provide that a justice of the peace in a township like Center township Marion county, Indiana, shall receive a salary of $ 2,000, which shall be in full of all compensation, fees, or allowances mentioned and set forth in the section providing for fees. It is to be noted that there is no averment in the complaint that indicates whether Center township, Marion county, Indiana, has a population that puts it in the class of townships in which the justices of the peace receive a salary compensation of $ 2,000, but the court will take judicial knowledge that its population so classifies it. Board, etc. v. Garty (1903), 161 Ind. 464, 68 N.E. 1012. Sections 3682 et seq., supra, specify the services that are required of justices of the peace in insanity inquests, and then § 3732 Burns 1914, § 2871 R. S. 1881, in force since 1853, provides that justices of the peace shall receive for services, as examining officers, in such proceedings, each $ 2 per day, and § 3699, as amended in 1901. (Acts 1901 p. 529), provides for a fee of $ 1 for depositing the papers prepared with the clerk of the circuit court. Each of these fees is payable out of the county treasury. Section 2 of "An Act concerning justices of the peace, presenting their number and fixing their compensation," approved, March 15, 1913, Acts 1913 p. 834, § 1865 Burns 1914, provides that "The fees of justices of the peace shall be as follows:" Then follows a list of fees for services, in which list no provision is made for compensation for services in insanity inquests. It is then provided that: "In any township in the state wherein is located a city having a population of one hundred thousand or more, * * * no fees named in this section * * * shall be charged or collected, but the justices of the peace, and each of them, shall receive * * * a salary at the rate of $ 2,000 per annum, payable quarterly * * * out of the township treasury, which said salary shall be in full of all compensation, fees, or allowances, as mentioned and set forth in this section." If appellee's contention is sustained, then the court must hold that all of the justices of the peace of the state, which means those who receive no salary, as well as the very few who do, must perform their services in insanity inquests, paying their own expenses, without compensation. In...
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