Noble County Council v. State ex rel. Fifer, No. 29203

Docket NºNo. 29203
Citation125 N.E.2d 709, 234 Ind. 172
Case DateApril 04, 1955
CourtSupreme Court of Indiana

Page 709

125 N.E.2d 709
234 Ind. 172
The NOBLE COUNTY COUNCIL, Designated in the Pleadings as the
County Council of Noble County, Indiana, Joe McDuffee, Irvin
Cobbs, Carlyle Harrold, Thomas Schlotterback, John
Schermerhorn, Jr., Alcom Bunger, and Geral E. Haynes, All
Members of said County Council of Noble County, Indiana, The
Board of County Commissioners of the County of Noble,
Designated in the Pleadings as The Board of Commissioners of
Noble County, Indiana, and Each Member thereof, and John
Singleton, Jr., Auditor of Noble County, Indiana, Appellants,
v.
The STATE of Indiana ex rel. William Leon FIFER, Appellee.
No. 29203.
Supreme Court of Indiana.
April 4, 1955.
Concurring Opinion April 7, 1955.

[234 Ind. 175]

Page 711

James P. Murphy, Fort Wayne, Albert J. Kuster, Ligonier, Leo Rumbaugh, Albion, for appellant.

Ralph W. Probst, Kendallville, for appellee.

ACHOR, Justice.

This is a civil action, brought by appellee against appellants to obtain judgment for salary and expenses as probation officer for Noble County, Indiana, and to mandate an appropriation for the payment of the amount due. Trial resulted in a judgment for $5,600 and costs against the Board of Commissioners of Noble County. The decree further directed the relator (appellee) to 'prepare and submit to the Auditor and the County Council estimates for the amount of his salary and expenses, as required by § 26-521, Burns' 1948 Repl. for the years 1952 and '53,' and ordered the Auditor to prepare an ordinance of appropriation for said sum and to prepare and publish a regular notice of a special meeting (within 60 days) of the Noble County Council for the purpose of adopting such ordinance. The judgment ordered the members of the Noble County Council to meet pursuant to such notice and adopt said ordinance of appropriation. [234 Ind. 176] It then ordered the Board of Commissioners and the Auditor of Noble County, pursuant thereto, to pay over to the appellee the sum of $5,600 so appropriated.

Appellee filed an amended complaint, upon which the issues were tried. Therefore, any error in rulings to pleadings addressed to the original complaint only are waived. Kimble v. Jolly, 1940, 217 Ind. 698, 30 N.E.2d 463.

The errors not waived, assigned and relied upon by appellant in this appeal are:

'3. The court erred in overruling appellant's demurrer to appellee's amended complaint, separately and severally.

'4. The court erred in overruling appellant's motion for new trial, separately and severally.'

The grounds asserted in appellants' motion for new trial, and relied upon by appellants in this appeal, are:

'2. Error in the assessment of the amount of recovery, in this, that the amount is too large.

'3. The decision of the Court is not sustained by sufficient evidence.

'4. The decision of the Court is contrary to law.'

Page 712

The essential facts in this case are as follows: On March 5, 1951, the Judge of the Noble Circuit Court appointed appellee as probation officer for Noble County, 'to serve indefinitely;' fixed his salary at $2,500 per annum, payable monthly, plus actual expenses necessarily incurred in the performance of his duty, and entered an order to that effect on the dockets of the court.

Simultaneously, on March 5, 1951, the Noble County Council, convened in a special session, appropriated out of the general fund $2,300 for the payment of salary of the probation officer for the balance of the year 1951, and the further sum of $500 as mileage for said [234 Ind. 177] probation officer for the balance of the calendar year 1951.

In September 1951, the Noble County Council convened to pass upon the various requests for appropriation of the various county offices pertaining to expenditures of funds for the year 1952. At this meeting estimates pertaining to the Circuit Court of Noble County were submitted, including the annual salary and expenses of a probation officer. The council refused to appropriate the sum of $2,500 for the salary of a probation officer, as requested by the court, but did appropriate the sum of $600 to pay the expenses of appellee for the year 1952. No request or estimate was filed with the Auditor of the County Council in the year 1952 for appropriation of funds with which to pay the salary and expenses of a probation officer during the year 1953.

On May 2, 1953, appellee served upon the County Council, while in special session, a written demand that it make an appropriation with which to pay his salary and expenses during the year 1953. The session adjourned, with no action taken by the council with regard to this 'demand.' This suit for mandamus followed on May 6, 1953. Trial was commenced on January 28, 1954. No supplemental complaint was filed. However, evidence was admitted without objection that appellee performed his duties as probation officer under his appointment during the entire calendar years of 1952 and 1953, that he did receive the sum of $600 as expenses for his office in the calendar year of 1952, but that he did not receive any salary for that year, nor did he receive any salary or expenses for the year 1953. Evidence was also admitted, without objection, that at a regular meeting of the council in September 1953, the following resolution was adopted:

[234 Ind. 178] 'We the members of the Noble County Council in regular session September, 1953, wish to go on record that we are opposed to appointing a full time probation officer for Noble County.'

Therefore, we must consider the complaint as having been amended and supplemented so as to include all the facts in evidence which transpired during the year 1953.

Appellants rest their case upon three major contentions. They are as follows: (1) That the appropriation of funds for the salary of the probation officer, as fixed by the court, was discretionary with and not mandatory upon the county council; (2) that the County Reform Act, § 26-501 et seq., Burns' 1948 Repl., Acts 1899, ch. 154, § 1 et seq., p. 343, specifically provides the procedure for and payment of county funds, that therefore mandamus proceedings could not be had against the county council to require an appropriation of funds without first complying with the express terms of the Act; (3) that appellee had an adequate remedy at law, and, therefore, mandamus, being an extraordinary remedy, would not lie.

The answer to these contentions requires a careful and comprehensive consideration of both the inherent and constitutional authority of the judiciary as well as the statutes concerned with the relationship of the judicial and legislative branches of the government. The pertinent parts of the statute authorizing the appointment of a probation officer and the fixing of his salary by the court is as follows:

'The judges of the several circuit courts * * * may appoint one or more probation officers, to serve such courts, and under the direction of such

Page 713

judges, as the needs of such courts shall require. * * * The appointment of a probation officer shall be in writing and shall be entered upon the records [234 Ind. 179] of the court making such appointment. The judge or judges of such courts appointing a probation officer, are hereby authorized to fix the compensation to be paid such officer, at not to exceed twenty-five hundred dollars ($2,500) per annum. Probation officers shall be allowed their actual expenses necessarily incurred in the performance of their duties when the same are approved by the court under which they are serving.' § 9-2212, Burns' 1942 Repl., Acts 1927, ch. 210, § 4, p. 594.

Notwithstanding the express provisions of § 9-2212, supra, appellants assert that, inasmuch as the salary of the probation officer was merely fixed by the judge, and not by statute, such salary 'was ever under the dominion and control of the County Council, and (that) it rested with that body whether there be a probation officer, and the amount such officer would receive for his services.' In support of this position, appellants cite §§ 26-515, 26-527, Burns' 1948 Repl., Acts 1899, ch. 154, §§ 15, 27, at p. 343, which provides:

'* * * The power of making appropriations of money to be paid out of the county treasury shall be vested exclusively in such council, and, except as in this act otherwise expressly provided, no money shall be drawn from such treasury but in pursuance of appropriations so made.' § 26-515.

'No court, or division thereof, of any county, shall have power to bind such county by any contract, agreement, or in any other way, except by judgment rendered in a cause where such court has jurisdiction of the parties and subject-matter of the action, to any extent beyond the amount of money at the time already appropriated by ordinance for the purpose of such court, and for the purpose for which such obligation is attempted to be incurred, and all contracts and agreements, express or implied, and all obligations of any and every sort attempted beyond such existing appropriations shall be absolutely void.' § 26-527.

Also, in support of their position, appellants cite the [234 Ind. 180] case of Benton County Council of Benton County v. State ex rel. Sparks, 1946, 224 Ind. 114, 65 N.E.2d 116. This case involved the increase of the salary of a county superintendent by the township trustees of the county, as authorized by statute. However, the case does not support appellants' position. It merely holds that the legislature may delegate the fixing of a reasonable salary of a state official (county superintendent) to related administrative bodies, unless it is expressly provided in the Constitution that such salary be 'fixed by law' (legislative enactment). In that case, the court held that the Benton County Council had no discretion in the matter and mandated it to appropriate funds with which to pay the salary fixed by the trustees of the county.

Contrary to appellants' interpretation of the Benton County case, supra, it, in fact, supports appellee's position...

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51 practice notes
  • Eichelberger v. Eichelberger, No. B-7239
    • United States
    • Supreme Court of Texas
    • May 23, 1979
    ...to allow the court to function, e. g., Smith v. Miller, 153 Colo. 35, 384 P.2d 738 (1963); Noble County Council v. State ex rel. Fifer, 234 Ind. 172, 125 N.E.2d 709 (1955); Judges for the Third Judicial Circuit v. County of Wayne, 383 Mich. 10, 172 N.W.2d 436, 441 (1969), opinions substitut......
  • O'Coin's, Inc. v. Treasurer of Worcester County
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 19, 1972
    ...493, 511--512, 29 N.E.2d 405; Woods v. State, 233 Ind. 320, 324--325, n. 3, 119 N.E.2d 558; Noble County Council v. State ex rel. Fifer, 234 Ind. 172, 178--187, 125 N.E.2d 709; Castle v. State, 237 Ind. 83, 86--87, 143 N.E.2d 5 Bates v. Independence County, 23 Ark. 722, 724--726. Dahnke v. ......
  • Morgan County Commission v. Powell
    • United States
    • Supreme Court of Alabama
    • April 4, 1974
    ...and cited and commented upon in the decree here involved are: Smith v. Miller, 153 Colo. 35, 384 P.2d 738; Noble County Council v. State, 234 Ind. 172, 125 N.E.2d 709; Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex.Civ.App.); Commonwealth ex rel. Carroll v. Tate, 442 P......
  • Tyler v. Chicago & E. I. Ry., No. 30076
    • United States
    • Indiana Supreme Court of Indiana
    • March 21, 1961
    ...in rulings on pleadings addressed to the original complaint only are waived. Noble Co. Council etc., et al. v. State ex rel. Fifer, 1955, 234 Ind. 172, 176, 125 N.E.2d 709; Kimble v. Jolly, 1940, 217 Ind. 698, 700, 30 N.E.2d Second: Appellant contends that Paragraph I of the complaint, as a......
  • Request a trial to view additional results
51 cases
  • Eichelberger v. Eichelberger, No. B-7239
    • United States
    • Supreme Court of Texas
    • May 23, 1979
    ...to allow the court to function, e. g., Smith v. Miller, 153 Colo. 35, 384 P.2d 738 (1963); Noble County Council v. State ex rel. Fifer, 234 Ind. 172, 125 N.E.2d 709 (1955); Judges for the Third Judicial Circuit v. County of Wayne, 383 Mich. 10, 172 N.W.2d 436, 441 (1969), opinions substitut......
  • O'Coin's, Inc. v. Treasurer of Worcester County
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 19, 1972
    ...493, 511--512, 29 N.E.2d 405; Woods v. State, 233 Ind. 320, 324--325, n. 3, 119 N.E.2d 558; Noble County Council v. State ex rel. Fifer, 234 Ind. 172, 178--187, 125 N.E.2d 709; Castle v. State, 237 Ind. 83, 86--87, 143 N.E.2d 5 Bates v. Independence County, 23 Ark. 722, 724--726. Dahnke v. ......
  • Morgan County Commission v. Powell
    • United States
    • Supreme Court of Alabama
    • April 4, 1974
    ...and cited and commented upon in the decree here involved are: Smith v. Miller, 153 Colo. 35, 384 P.2d 738; Noble County Council v. State, 234 Ind. 172, 125 N.E.2d 709; Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex.Civ.App.); Commonwealth ex rel. Carroll v. Tate, 442 P......
  • Tyler v. Chicago & E. I. Ry., No. 30076
    • United States
    • Indiana Supreme Court of Indiana
    • March 21, 1961
    ...in rulings on pleadings addressed to the original complaint only are waived. Noble Co. Council etc., et al. v. State ex rel. Fifer, 1955, 234 Ind. 172, 176, 125 N.E.2d 709; Kimble v. Jolly, 1940, 217 Ind. 698, 700, 30 N.E.2d Second: Appellant contends that Paragraph I of the complaint, as a......
  • Request a trial to view additional results

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