State ex rel. Bd. of Cnty. Com'rs v. Laramore

• Decision Date: 19 April 1911
• Docket Number: No. 21,734.,21,734.
• Citation: 175 Ind. 478,94 N.E. 761
• Parties: STATE ex rel. BOARD OF COUNTY COM'RS v. LARAMORE et al.
• Court: Indiana Supreme Court

175 Ind. 478

94 N.E. 761

STATE ex rel. BOARD OF COUNTY COM'RS

v.LARAMORE et al.

No. 21,734.

Supreme Court of Indiana.

April 19, 1911.

Appeal from Circuit Court, Starke County; F. J. Vurpillat, Judge.

Action by the State, on the relation of the Board of Commissioners of Starke County, against Andrew J. Laramore and others.Judgment for defendants, and relator appeals.Reversed, with instructions.

B. D. L. Glazebrook and George Burson, for appellant.Beeman & Foster, Charles H. Peters, Henry A. Steis, and Glenn D. Peters, for appellees.

COX, J.

This action was brought by the appellant to recover on two official bonds, covering his two consecutive terms of office as sheriff of Starke county, given by appellee Laramore as principal, and on which bonds the other appellees were sureties.

In this court questions are raised on rulings of the trial court on the pleadings and on appellant's motion for a new trial, and in stating its first conclusion of law upon the facts specially found.

In view of the conclusion which must necessarily follow from a consideration of the case, no need arises to consider other than the last question.Counsel for both sides of the controversy agree that the finality of the case involves but one question, and that is presented by the first conclusion of law.

In that part of its special findings of facts material here in the consideration of the question for decision, the court found in substance that during the first term of appellee Laramore as sheriff he collected and received as commissions on orders for the sale of real estate on executions and decrees, and as percentage for collecting fee bills, other than his own, the aggregate sum of $517.59; that during his second term he collected and received for like services the aggregate sum of $1,034.69; and that these sums he retained as his own, and failed and refused to pay the same, or any part thereof, into the county treasury.

[2] Upon these factsthe court concluded the law to be with the defendants, on the ground “that so much of section 122 of the act approved March, 1895, Acts 1895, p. 352, being section 7335, Burns' Statutes, 1908, as provides that: ‘The sheriffs of the various counties of this state shall tax and charge for their services the following amounts, to wit: *** Selling property on execution or decree, a commission of three per centum on the first three hundred dollars, and one and one-half per centum on any excess above that amount; but when the money is paid to him without sale one half of the above commission only shall be allowed.*** For collecting fee bills, except for his own fees, on the amount collected, six per cent.’-is unconstitutional and void, as contravening section 12, art. 1, of the Constitution of Indiana, which provides that ‘justice shall be administered freely and without purchase,’ and that therefore there can be no recovery upon the official bonds in suit, the relators can take nothing by their action, and that the defendants recover costs.”

Upon this conclusion of law judgment was rendered in favor of appellees, and against appellant, for costs.

In the brief filed by the appellees in their effort to sustain the judgment of the trial court, it is conceded that the Legislature may provide by law what fees a public officer may charge for the performance of official duties without infringing the particular phrase in the Bill of Rights above quoted, and this concession would seem to lead inevitably to the conclusion that the question involved in this case is foreclosed against appellees by the decision of this court in Henderson v. State ex rel.(1893)137 Ind. 552, 36 N. E. 257, 24 L. R. A. 469.

[1] But it is insisted that, if the exactions which the law requires the officer to collect from those to whom he has rendered official service, and to pay the same into the county treasury, are more than is just and reasonable compensation for the particular services performed, or more than is sufficient to cover the fixed salary of the officer, the act is therefore in violation of the above provision of the Constitution.And it is insisted that the commissions and percentages allowed in the particular matters involved are unreasonable in amount.In answer to this it may be said that courts do not know judicially that the fees, commissions, and percentages, which the act under consideration requires officers having to do with the administration of justice to collect from those who resort to the courts for settlement of their differences, would in any instance in any of the counties of the state amount to more than the salary of the particular officer, nor that the sum fixed by law and collected for any particular service would be unreasonable and extortionate and more than compensation for the services rendered.Nor have the courts authority to take evidence to inform themselves on these matters for the purpose of declaring the invalidity of the law.The questions raised were for the legislative department to settle in framing the law in question, and we must presume that they took counsel and determined that the exactions provided for in the act were just and reasonable.

The provision for a commission as compensation to the sheriff for making sales on decretal orders and executions has been a part of all of the fee and salary laws enacted in this state at least since the act of January 30, 1824(Rev. Laws 1824, c. 41); the difference in the provisions of that act and the one in question being only that the commission therein allowed to be collected was greater in per cent. than that in this.Surely this persistent legislative practice is not without force in the consideration of the constitutionality of such provision.Hovey v. State ex rel. Riley(1889)119 Ind. 386, 21 N. E. 890;Hovey v. State ex rel. Carson(1889)119 Ind. 395, 21 N. E. 21;Spaulding v. Mott(1906)167 Ind. 58-66, 76 N. E. 620.

It is true that during most of this long period of time the fees, commissions, and percentages went direct to the officer as compensation, and were not, as in the act of 1895, required to be paid into the county treasury.But, on the theory of appellees that the commissions and percentages provided are so unreasonable and burdensome in amount for the service rendered that the law giving them is a violation of this provision of the Constitution, it could make no difference whether the sums so collected went directly to the officer, or to the public treasury, for the wrong, if any existed, would be in the extortionate charges, and not in their destination.

In the cases of Miles v. Ohaver(1860)14 Ind. 206, andKirkland v. Robinson(1865)24 Ind. 105, while the validity of similar provisions for poundage to sheriffs was not raised, yet this court recognized the right of these officers under them to this sort of compensation.And it seems that the legislative practice in basing compensation for these services of sheriffs on a percentage has not been broken by any judicial...