State ex rel. Bd. of Com'rs Benton Cnty. v. Boice

• Decision Date: 27 November 1894
• Citation: 140 Ind. 506,39 N.E. 64
• Parties: STATE ex rel. BOARD OF COM'RS BENTON COUNTY v. BOICE, Treasurer, et al.
• Court: Indiana Supreme Court

140 Ind. 506

39 N.E. 64

STATE ex rel.BOARD OF COM'RS BENTON COUNTY

v.BOICE, Treasurer, et al.¹

Supreme Court of Indiana.

Nov. 27, 1894.

Appeal from circuit court, Benton county; U. Z. Wiley, Judge.

Action by the state of Indiana, by relator, against Abram C. Boice, treasurer of Benton county, and others, on an official bond. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.

Gray, Blacklidge & Thornton and Mr. Smith, for appellant. Brown & Hall and Elliott & Elliott, for appellees.

HACKNEY, J.

Abram Boice was elected treasurer of Benton county in the year 1892, and after assuming the duties of that office, it was alleged, he received, in fees collected from persons for services performed as such officer, a sum of money which he withheld from the “treasurers' fund,” established by the act of March 9, 1891 (Acts 1891, p. 450, § 125). It was further alleged that he appropriated said sum to his own use, as a part of the compensation of his office, and denied the right of said county to assert or maintain any interest therein. The relator sued upon the bond of said treasurer for the recovery of said sum to the use of said treasurers' fund, and to the complaint the lower court sustained the demurrer of the appellees. In support of that ruling, it is insisted that the Act of March 9, 1891, supra, was passed in violation of the following inhibitions of the state constitution: “The general assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * (10) regulating the election of county and township officers and their compensation, * * * (13) In relation to fees and salaries, except that the laws may be so made as to grade the compensation of officers in proportion to the population and the necessary services required.” Const. art. 4, § 22. Also, that “In all cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the state.” Id. § 23.

The character, scope, and object of the act in question were fully considered by us in the recent case of Henderson v. State, 136 Ind. ---, 36 N. E. 257, and it is unnecessary to further state them. The act sought to establish a system of fees and salaries for numerous classes of offices and officers, among which was that of county treasurers. For that class of officers, salaries were provided as to all of the counties of the state, omitting Shelby county, as to which county no compensation, by way of fees or salary, was provided. Thus, it is insisted, with other propositions, that the act became local, and lacked uniformity of operation throughout the state, with reference to the system of salaries contemplated and adopted by it. In State v. Krost (at the present term) 39 N. E. 46, we held that the act should be considered as presenting a system of fees apart from the system of salaries also provided; and we now add that either system must stand, and its constitutional validity be determined, independently of the other. The system of salaries created and promulgated by the act was manifestly intended to be general as to the class of public officials to which the appellee Boice belongs,-general in the sense that it was not designed to apply that system to some of the counties of the state, and some other system or different rule to another county, or other counties. This is made to appear clearly from those provisions of the act which require that the receipts of the office, as applied to every county in the state, shall be paid into the county treasury, and constitute a treasurers' fund for the payment of treasurers' salaries. It is utterly inconsistent with any theory of the intention of the legislature that the fund should be created in any county, and not be applied. This conclusion excludes the idea that it could have been intended to place the treasurers of all of the counties of the state, excepting Shelby county, upon salaries, and, as to that county, to permit the old fee system to continue, or to provide by implication that the treasurer of that county should serve without compensation. We know judicially that the population of the omitted county, and necessary service in the office of the treasurer thereof, entitled it to be classified among the counties whose treasurers were given compensation by the act, yet we do not intimate that we could know, or that we have authority to determine, to the exclusion of the legislative decision, as to what class said county should have been assigned, or what the compensation should have been. As we find the question presented, 91 of the counties were included in the salary...