Pike County v. State ex rel. Hardin
| Decision Date | 23 October 1984 |
| Docket Number | No. 1-184A27,1-184A27 |
| Citation | 469 N.E.2d 1188 |
| Parties | PIKE COUNTY, Indiana; Joseph O. Gray, Pike County Auditor; Dorothy Culbertson, Pike County Treasurer; Chester Martin, Paul Cooper, Howard Miley, Jr., Shirley Sturgeon, Richard Brewster, Bob King, Donald W. Davis, Councilmen of Pike County; Bob Bement, C.M. Brown, Dordon Hartke, County Commissioners of Pike County, Defendant-Appellants v. STATE of Indiana, ex rel. Berniece HARDIN, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Russell E. Mahoney, Thomas C. Gray, Petersburg, for defendants-appellants.
Roger S. Curry, Schneider, Lett, Shaneyfelt & Curry, Jasper, for plaintiff-appellee.
Pike County, Indiana (Pike County) and certain of its officers, commissioners, and councilmen appeal the trial court's order granting summary judgment as to the county's duty to pay its prison matron, Berniece Hardin, back pay from 1975 to 1982.
We affirm.
From 1975 through 1982, Alvin Hardin was the Sheriff of Pike County, and in conformity with existing state statutes, he appointed his wife, Berniece, as prison matron for the same time period. Berniece's salary was appropriated by the Board of County Commissioners and approved by the County Council.
During Berniece's tenure, she performed the duties required of a prison matron, which included but were not limited to receiving, taking charge of, searching, and caring for female prisoners and children under the age of 14 arrested and detained in Pike County. Berniece further performed The Sheriff's Department employed one deputy who was hired at or about the same time as theprison matron. Both were at the same rank or grade.
when requested, the duties of deputy and any other duty required for the efficient operation of the Pike County Sheriff's Department.
IND.CODE 11-5-4-3, 1 amended February 14, 1972, states in part that "the prison matron ... shall be paid such compensation or salaries as other deputy sheriffs and police officers are paid".
Berniece brought an action for mandate in February, 1983, requesting that Pike County pay her unpaid salary due and owing from 1975 to and including 1982. The unpaid salary amount represents the difference between the deputy's salary and Berniece's salary during the eight year time period. Pike County answered the complaint, asserting five affirmative defenses; it also filed a Motion to Dismiss with supporting affidavits. Berniece opposed the Motion to Dismiss with an affidavit; then, the prison matron filed a Motion for Summary Judgment pursuant to Ind. Rules of Procedure, Trial Rule 56. One of the affidavits submitted with the motion contained a claim Berniece presented to the Pike County Auditor for wages owed on November 3, 1982. Berniece set forth the annual salaries paid to her as compared to the compensation paid to the deputy sheriff as follows:
"For pay period ending 1975 to and including 1982
---------------------------
Paid to Paid to
Year Deputy Matron Deficit
---- ----------------- ----------------- ----------------
1975 $8,591.00 $3,993.00 $4,598.00
1976 9,191.00 4,300.00 4,891.00
1977 9,591.00 4,475.00 5,116.00
1978 10,771.00 5,300.00 5,471.00
1979 10,771.00 5,300.00 5,471.00
1980 11,671.00 5,724.00 5,947.00
1981 12,721.00 6,000.00 6,721.00
1982 13,516.00 6,360.00 7,156.00
Difference Due:
Total: $45,371.00"
Pike County responded to the summary judgment motion with an affidavit, and the trial court, after oral argument, entered summary judgment for Berniece based upon its review of the affidavits and the argument of counsel. The court awarded judgment against Pike County in the amount of $66,471.82 (principal sum plus accrued prejudgment interest) together with 12% interest from October 1, 1983 until paid.
Pike County presents the following issues for review:
I. Whether the appellee, as a former employee of Pike County, Indiana, was entitled to the remedy of a money judgment of back pay under her complaint for mandate;
II. Whether the trial court erred in granting summary judgment for Berniece III. Whether the Pike County Council abused its discretion in including housing, utilities, and other benefits furnished as a part of the compensation or salaries paid to the prison matron.
Pike County argues that Berniece could not properly recover a money judgment for back pay on her complaint for mandate; instead, the proper course of action is a suit for breach of contract of employment.
IND.CODE 34-1-58-2 states that "the action for mandate may be prosecuted against any inferior tribunal, corporation, public or corporate officer or person to compel the performance of any act which the law specifically enjoins, or any duty resulting from any office, trust, or station". Ordinarily, mandate will not issue to enforce a contract obligation, since legal and equitable remedies afford adequate relief. 19 I.L.E. Mandate and Prohibition, Sec. 22 (1959).
Since Berniece is an employee, not an officer, Pike County asserts, then her remedy must be for damages for breach of her employment contract. See City of Evansville v. Maddox, (1939) 217 Ind. 39, 25 N.E.2d 321. Berniece insists, on the other hand, that she is an officer.
An office, as opposed to an employment, is a position for which the duties are continuing and are created by law instead of contract. Mosby v. Board of Commissioners, (1962) 134 Ind.App. 175, 186 N.E.2d 18. The duties include the performance of some sovereign power for the public's benefit. Mosby, supra. "An officer is distinguished by his power of supervision and control and by his liability to be called to account as a public offender in case of malfeasance in office". Id. at 180, 186 N.E.2d 18.
IND.CODE 11-5-4-6 states that the prison matron shall be appointed by the sheriff, and Sec. 11-5-4-2 states that upon such appointment, she shall be "a member of the sheriff's force ... and shall have all the authority now delegated to sheriffs and police officers in such counties". Further, the prison matron has all the powers and duties of a member of the sheriff's or police force. IND.CODE 11-5-4-3. Even though we of are of the opinion that the above statutory language does not raise the prison matron's status to that of an officer, we nevertheless determine that such status is immaterial to the issue of whether an action for mandate lies here.
There is no dispute amongst the parties that the salary of the prison matron shall be appropriated by the board of county commissioners and approved by the county council. IND.CODE 11-5-4-3 requires, as explained earlier, that "the prison matron ... shall be paid such compensations or salaries as other deputy sheriffs and police officers are paid". (Our emphasis). Even though the Pike County officials have the general authority to fix the prison matron's compensation or salary, they are nevertheless required by statute to fix it in an amount equal to other deputy sheriffs and police officers. Mandamus will lie where, for example, a county job or salary is set by the legislature, and the council or commissioners do not abide by the legislation. County Council of Bartholomew County v. Department of Public Welfare, (1980) Ind.App., 400 N.E.2d 1187.
Herein, then, lies the focus of the entire appeal: what is the meaning of "such compensation or salary" as included in IND.CODE 11-5-4-3? Do the council and commissioners, as Pike County argues, have the discretion to include housing, utilities, and other unidentified benefits as part of the prison matron's "compensation", or does the statute require, as Berniece contends, that the same amount of money be paid to the matron and the deputy sheriff?
Pike County bases its argument on Johnson v. Wabash County, (1979) 181 Ind.App. 281, 391 N.E.2d 1139. Johnson's facts are practically identical to those of the instant case. Johnson, the prison matron of Wabash County from 1967 through 1974, brought an action against the county to recover unpaid salary owed her for services rendered. Johnson claimed she was entitled to be paid a salary equivalent to the salary paid to other deputy sheriffs and police officers in accordance with IND.CODE 11-5-4-3 which, prior to the aforementioned 1972 amendment, required that the prison matron be paid such compensation and salaries as other deputy sheriffs and police officers are paid for like work. Johnson, supra, 391 N.E.2d at 1141 (our emphasis). Johnson also sued for attorney fees and liquidated damages.
The County's answer asserted five separate defenses, including (1) Johnson's claim was barred by the applicable statute of limitations; (2) waiver; (3) laches; (4) Johnson did not perform "like work"; and (5) the prison matron position was part-time. Further, the answer asserted as a set off that Johnson lived in a dwelling provided by the county free of any rent or utility charges during the term of her employment and that this constituted additional compensation since none of the deputies or other police officers were provided with rent- and utility-free homes. Id. at 1142.
The County filed a motion for summary judgment together with affidavits and a memorandum; in the memorandum, it asserted that it had paid Johnson the statutory minimum salary according to the requirements of IND.CODE 17-3-71-2. Id. The trial court granted the county's motion for summary judgment; Johnson appealed its decision.
The Court of Appeals determined that the court's decision granting summary judgment was incorrect both in its application of the law and in its determination that no genuine issue of...
To continue reading
Request your trial
-
Estate of Edwards, Matter of
...that the amendment was made only to express the original intention of the legislature more clearly. Pike County v. State ex rel. Hardin (1984), Ind.App., 469 N.E.2d 1188, 1194; Lake County Beverage Co. v. 21st Amendment, Inc. (1982), Ind.App., 441 N.E.2d 1008, 1011, trans. At common law, a ......
-
Lambert v. Stark
...as to the existence of a genuine issue of material fact is resolved against the proponent of the motion. Pike County v. State ex rel. Hardin, (1984) Ind.App., 469 N.E.2d 1188, 1195. In their motion for summary judgment, Kesler & Stark correctly contended that the Lamberts' cause of action w......
-
National Salvage & Service Corp. v. Commissioner of Indiana Dept. of Environmental Management
...that the amendment was made only to express the original intention of the legislature more clearly". Pike County v. State ex rel. Hardin (1984), Ind.App., 469 N.E.2d 1188, 1194. The presumption is rebutted in the instant case. This new definition of transfer station was added to clear up th......
-
Funk v. Funk, 79A02-9004-CV-208
...forward with sufficient evidence to controvert the moving party's assertion that no factual issue exists. Pike County v. State ex rel. Hardin (1984), Ind.App., 469 N.E.2d 1188. In order to preclude the entry of summary judgment, the nonmovant may not contend that there were factual issues c......