Pfaff v. State ex rel. Maxwell

• Decision Date: 16 April 1884
• Docket Number: 11,208
• Citation: 94 Ind. 529
• Parties: Pfaff, Auditor, v. The State, ex rel. Maxwell, Coroner
• Court: Indiana Supreme Court

94 Ind. 529

Pfaff, Auditor, v. The State, ex rel. Maxwell, Coroner

No. 11,208

Supreme Court of Indiana

April 16, 1884

From the Marion Circuit Court.

The judgment is reversed, at the relator's costs, and the cause remanded with instructions to sustain the demurrer to the complaint and alternative writ of mandate.

W. W Woollen, for appellant.

V Carter and F. Winter, for appellee.

OPINION

Howk C. J.

This was a proceeding by mandate by the appellee's relator, as coroner of Marion county, to compel the appellant, as the auditor of such county, to issue his warrant on the treasurer of the county for the expenses of a certain inquest held and certified by the relator as such coroner. The appellant's demurrer, for the want of facts, to the complaint and alternative writ, was overruled by the court. An answer and return were then filed by the appellant, to which the relator's demurrer, for the alleged want of facts, was sustained by the court. The appellant excepted to this ruling, and declined to answer further or make further return. Judgment was rendered in appellee's favor for a peremptory mandate and costs.

The appellant has assigned as errors (1) the overruling of his demurrers to the complaint and alternative writ, and (2) the sustaining of a demurrer to his answer or return.

In his complaint and alternative writ the relator alleged that he was the coroner of Marion county; that, on August 8th, 1883, it became and was the official duty of the relator, as coroner, to hold an inquest upon the body of one Sophia E. Wishmier, a resident of such county, who had been found dead therein, and he had accordingly held an inquest on such body, on the day named; that the fees fixed by law for such inquest were as follows: For inquest $ 10, and mileage fifty cents, for the relator as coroner; that afterwards, on August 31st, 1883, the relator filed a certified statement of his fees as aforesaid with the appellant, then and since the auditor of such county, whose duty it was to draw his warrant in the relator's favor on the county treasurer for the amount of such fees; that the relator then and there demanded of the appellant that he issue such warrant in relator's favor, for the amount of his fees; but that the appellant, as such auditor, refused then and since to issue such warrant. Wherefore, etc.

It will be seen from his complaint that the relator claims it to be the duty of the county auditor to draw a warrant on the county treasurer for the payment of the expenses of an inquest, upon the mere presentation to such auditor of an account of such expenses, certified by the coroner, and his demand for such warrant. On the other hand, it is claimed by the appellant that he can not, as county auditor, under the law, draw his warrant on the county treasurer for the payment of such account until it has been "presented to the board of county commissioners," and allowed either by such board or, on appeal, by the judgment of some superior court. The question at issue between the parties has been ably and elaborately argued by their respective counsel, and if we fail to reach a right conclusion in the decision of the cause, it will not be the fault of counsel on either side.

The question mainly depends, for its proper decision, upon the construction of divers statutory provisions enacted at divers times, beginning with the R. S. 1852, and extending down to and through the enactments of the last General Assembly; at least, it requires an examination of the long line of legislation, covering in time nearly one-third of a century, in relation to the powers and duties of certain county officers, and the compensation of such officers in so far as the same is payable out of the county treasury. This examination is necessary, because while new statutory provisions, bearing upon the subject under consideration, have been enacted from time to time, there has seldom been an express repeal of the prior legislation.

The office of coroner is a constitutional office; that is, in section 2, article 4, of the Constitution of 1851, it is provided that "There shall be elected, in each county, by the voters thereof, at the time of holding general elections, a * * * coroner," who "shall continue in office two years," Section 152, R. S. 1881. The first General Assembly, after the adoption of the Constitution of 1851, passed "An act prescribing the powers and duties of coroners," approved May 27th, 1852, which act, except sections 2, 3, 5 and 7 thereof, which have been repealed, is still in full force, save that sections 10 and 11, and section 4 as amended by the act of February 9th, 1871, have since been amended. Sections 5875 to 5892, R. S. 1881. The act of May 27th, 1852, contained no provision in relation to the fees or compensation of the coroner, for holding an inquest, nor for the payment thereof. But in "An act regulating the fees of officers," approved June 16th, 1852, the fees of a coroner for holding an inquest were fixed, and provision was made for their payment; and the same has generally been done in the several fee and salary acts since passed. Thus, in section 36 of the fee and salary act of March 12th, 1875, it is provided as follows: "The fees of coroner's inquests shall be paid out of the county treasury." 1 R. S. 1876, p. 478.

This section has never been repealed, and is the...