State ex rel. Fox v. Bd. of Cnty. Comm'rs of Carroll Cnty., 24904.

• Decision Date: 09 December 1931
• Docket Number: No. 24904.,24904.
• Citation: 178 N.E. 563,203 Ind. 23
• Parties: STATE ex rel. FOX v. BOARD OF COUNTY COMMISSIONERS OF CARROLL COUNTY et al.
• Court: Indiana Supreme Court

203 Ind. 23

178 N.E. 563

STATE ex rel. FOX

v.BOARD OF COUNTY COMMISSIONERS OF CARROLL COUNTY et al.

No. 24904.

Supreme Court of Indiana, in Banc.

Dec. 9, 1931.

Appeal from Carroll Circuit Court, Carroll County; Benj. F. Carr, Judge.

Action for writ of mandate by the State of Indiana on the relation of Arthur G. Fox against the Board of County Commissioners of Carroll County and others. From an adverse judgment, the relator appeals.

Judgment reversed, and cause remanded, with directions.Claycombe & Stump, of Indianapolis, and W. C. Smith, of Delphi, for appellant.

Pollard, Cartwright & Wason, and Geo. M. Smith, all of Delphi, for appellees.

TRAVIS, C. J.

This is an action by appellant for mandate to compel the appellee, the county council of Carroll county, and the members thereof, to make the necessary appropriation, and the board of county commissioners of Carroll county, and the members thereof, to allow the necessary funds, and the auditor of Carroll county to issue the necessary warrants to make the payment to the relator of his salary for the office of county school superintendent. The issue below was presented by the separate and several demurrer of each of the appellees to appellant's amended complaint, because it does not state facts sufficient to state a cause of action. The demurrer was sustained, and the appellant refused to plead further. Whereupon, the court made its finding, “that said plaintiff should take nothing by its action, and that said plaintiff should pay the costs of this action.” Judgment was rendered upon the finding. Error is assigned upon the action the court sustaining the demurrer to the amended complaint.

The complaint alleges that the relator was elected to the office of county school superintendent by the board of trustees of the townships of Carroll county, September 1, 1921. Whereupon, he qualified as such officer, and then and thereafter, until the date of bringing this action, he was the duly elected, qualified, and acting superintendent of schools of Carroll county.

September 2, 1919, a majority of the trustees of the townships of Carroll county filed their petition with the board of commissioners of Carroll county to increase the salary of the incumbent county superintendent of schools in the amount of $1,000 per year, as provided by the Acts of 1919, ch. 78, such increase in salary to take effect August 15, 1919. Upon the same date, four hundred or more of the resident freeholders of the county of Carroll, not more than a hundred of whom resided in the same township in Carroll county, filed their petition with the county commissioners that the incumbent county superintendent of schools be allowed an addition to his salary in such amount as, in the judgment of the majority of the trustees of the townships of said county, the work may justify, under the act of 1919.

Thereafter, the board of commissioners of Carroll county made its order to grant the petitions increasing the salary as petitioned, and that such increase of salary begin August 15, 1919. The increase of salary so fixed by the order of the board of county commissioners, founded upon the petitions presented to the board, was paid to the incumbent county school superintendent, together with the salary as provided by statute, until the first day of September, 1921, the day upon which the relator was elected to the office of county school superintendent.

The incumbent superintendent filed with the county auditor on or about August 1, 1920, an estimate of the costs of the maintenance of the office of county superintendent of schools, in which estimate the cost of salary for such officer was fixed at $2,400 per year. The appellee, county council, at its next regular meeting after the filing of this estimate, made an appropriation for $2,400 to pay such salary to such superintendent, and that such appropriation was available for the payment of such salary to and including the salary for the month of December, 1921, but that the board of county commissioners refused to make the allowance therefor, and the appellee auditor refused to issue a warrant for the payment of such salary for the time covered, and that the salary has not been paid to the relator at the rate of $2,400 per year, as provided by law.

Relator alleges further that on or about August 1, 1921, such superintendent filed an estimate of the expenses of his office for the ensuing year, which included an estimate of his salary at $2,400 per year. Appellees, the county council, refused to make the necessary appropriation to pay the salary of the relator in the amount of $2,400 per year.

Relator alleges further that on or about the first day of August, 1922, this relator filed an estimate with such auditor, which included an estimate of his salary at the rate of $2,400 per year, and included therewith an amount of money sufficient to pay the deficit in his salary for the years preceding, all of which estimate was rejected by such county council, and that such county council, arbitrarily and unlawfully, fixed the salary of relator at the rate of $1,700 per year, and made an appropriation in that sum to pay the salary of such superintendent, and that such county council refused, and still does refuse, to adopt an ordinance fixing the appropriation at such an amount as will meet the payment of the salary to which relator is entitled since the beginning of his tenure in such office and including the current year, but that such county council made appropriation for the payment of salary of the relator at the rate of $1,700 per year.

Relator avers further that on November 12, 1923, he filed in the office of the auditor of said county an estimate of the expenses of his office, which estimate included the deficit of salary unpaid to him since the beginning of his office, and also an amount necessary to pay his salary at the rate of $2,400 per year for the next current fiscal year.

Relator avers further that on September 1, 1921, such county council adopted an ordinance which, in effect, reduced the salary of such county superintendent of schools from the sum of $2,400 per year to the sum of $1,500 per year, and that such county council made an appropriation in the amount of $1,500 per year for the payment of the salary of the relator, and that the salary of the relator thereafter for the months of September and October of 1921 were paid to, and received by, him at the rate of $125 per month.

Relator avers further that such county council, November 1, 1921, by its ordinance, increased the salary of such superintendent to the sum of $1,700 per year, and that thereafter the board of county commissioners duly allowed the salary of the county superintendent of schools each month at the rate of $1,700 per year; and that monthly payments in payment of the salary as fixed by the ordinance of county council at $1,700 per year, and which was allowed by the county commissioners, has been paid each month by such auditor to the relator.

Relator avers further that the salary of the superintendent of schools as fixed aforesaid, pursuant to the Act of 1919, was, during all the time herein referred to, and is now, the awful salary of said office, and that all of the acts of the appellees and each of them, in adopting ordinances for appropriations or in making allowances for less than $2,400 per year for such salary, are unlawful, and that the attempted exercise of such power is unjust, oppressive, and without warrant in law, and that by such acts of appellees, relator has been prevented, and is now prevented, from obtaining the salary for such office of county superintendent to which he is entitled.

Relator files with his amended complaint, as an exhibit and a part of it, a copy of the estimate of amount required to pay the expenses of the office, including his salary, which was filed in the office of the recorder November 6, 1923. Relator alleges that he does not have in his possession copies of the estimates of expenses for the operation of his office, including salary, which were filed with the auditor, August, 1921, and August, 1922; but that the originals are in the possession, care, and custody of the appellee auditor of said county, and that he made demand upon such auditor for inspection of such estimates that he might file copies thereof as exhibits to his complaint, but that such auditor was unable to find such estimates, which had been filed with him.

Relator further avers that the county council is about to meet in session and that it will refuse, as it has continuously refused since the incumbency of this relator in the office of county superintendent of schools, at its next meeting to make the appropriations necessary to pay the salary of relator as fixed by law, and, unless the court orders and directs such county council, and its members thereof, to adopt such an ordinance and make the necessary appropriations, the relator will be deprived of the compensation to which he is legally and rightfully entitled; and that the board of county commissioners and the members thereof have refused to allow, and will continue to refuse to allow, the claim of relator for his salary already earned and unpaid, and for salary to accrue hereafter for services as such superintendent, unless the court orders and directs such board of county commissioners to make such allowances; and that the auditor of said county has continuously refused, and will continue to refuse, to sign a warrant on the treasurer of the county for the payment of the salary already earned and to be earned by relator, unless the court orders and directs such auditor to issue such warrants; and that relator has no other adequateremedy than an action in mandate for the enforcement of his rights in the premises. The amended complaint was verified by affirmation. The exhibit hereinbefore referred to was not verified.

The necessary ultimate facts to be well pleaded in this action to support a finding...