Swank v. Tyndall
| Decision Date | 07 April 1948 |
| Docket Number | 28387. |
| Citation | 78 N.E.2d 535,226 Ind. 204 |
| Parties | SWANK et al. v. TYNDALL et al. |
| Court | Indiana Supreme Court |
Appeal from Marion Superior Court; Emsley W Johnson, Jr., judge.
Edward H. Knight, of Indianapolis, for appellants.
Grabill & Baker, all of Indianapolis, for appellee Denny.
Gideon W. Blain, of Indianapolis, for appellee Dean S Tyndall.
Scott Ging, of Indianapolis, for appellees Moore and Huse.
Arch N. Bobbitt, Henry B. Krug, City Atty., and Wm. F. Hoffman Asst. City Atty., all of Indianapolis, for other appellees.
The appellee, Frank P. Huse, Treasurer of Marion County Indiana is sued as exofficio City Treasurer of the City of Indianapolis, Indiana. Appellee, Ralph F. Moore, is sued in his official capacity as Auditor of Marion County, Indiana. Appellee, Dean S. Tyndall, is sued as executor of the last will of Robert H. Tyndall, deceased, who was mayor at the time of his death in 1947. The appellee, The City of Indianapolis, Indiana, is sued as a municipal corporation. Each of the remaining appellees is sued in his capacity as an officer of the City of Indianapolis, Indiana.
This is an equitable action by appellants as representatives of all taxpayers of the City of Indianapolis and of Marion County, Indiana, to recover for the use and benefit of said city and county, as their interests may appear, after the public authorities had refused to sue, from each of the city's eleven elective officers, any increase in salary that may have been paid them as allowed by Section 1 of Acts 1945, Ch. 203, p. 668, and from the defendant's Hickman and Huse as such city officials for the total amounts drawn upon the city funds and paid out by them to or for the use of said elective officers, for the allegedly unlawful amounts so paid them, with 6% interest per annum from the date of payment. They further pray that said defendants be perpetually enjoined from paying out or receiving and converting to their own use any of the city's funds for the amounts of the increases in the respective salaries over and above the salaries fixed at the time their elective terms of office began.
Appellees' demurrer to the complaint was sustained, with judgment, from which this appeal is taken.
Section 1 of Ch. 203 of the Acts of 1945, § 48-1223, Burns' 1945 Supp., became effective by emergency clause on March 6, 1945, and is as follows:
The prior law fixing the salaries of the eleven elective officers, appellees herein, is Section 11, Ch. 233, Acts 1933, p. 1050, 1051, § 48-1223, Burns' 1933, and reads as follows:
'In cities having a population of over two hundred fifty thousand, as shown by the last preceding United States census, the annual salaries for the officers herein named shall be fixed by the common council, as hereinafter provided, at not to exceed the following amounts: Mayor, six thousand dollars; controller, three thousand six hundred dollars; deputy controller three thousand dollars; city clerk, two thousand four hundred dollars; county treasurer ex officio city treasurer, one thousand six hundred dollars; corporation counsel, four thousand five hundred dollars; city attorney, three thousand six hundred dollars; city engineer, four thousand five hundred dollars; Provided, The salary established within the maximum herein named for the city engineer shall be in full for all services of whatsoever kind or nature, including his services as member of the board of sanitary commissioners and he shall receive no other fees, per diem or emoluments whatsoever; president of board of public safety, two thousand five hundred dollars; two members of the board of public safety, nine hundred dollars each; president of board of public works, three thousand dollars; two members of the board of public works, two thousand one hundred dollars each; city purchasing agent, three thousand six hundred dollars; president of board of sanitary commissioners, three thousand dollars; one member of the board of sanitary commissioners, other than the city engineer, two thousand one hundred dollars; members of the common council, six hundred dollars each; county auditor, for service to civil city, six hundred dollars.'
Section 21, Ch. 233, Acts 1933, page 1055, § 48-1233, Burns' 1933, provides, so far as may be applicable to this case, that the common council of every city shall by ordinance duly enacted on or before the first Monday in September, 1933, and thereafter on or before the first day of April of the year in which elections for city officers are held, fix the annual salaries of all officers provided for in this act at not exceeding the amounts herein specified, and such salaries when so fixed for such officers shall not be changed during their respective terms of office. The salaries of appellee elective officers were fixed by the Common Council of Indianapolis, by ordinance pursuant to § 48-1223, Burns' 1933, supra, during March, 1942. They were not fixed by statute, and a question is presented whether they were fixed by law or only pursuant to law. This question has been recently considered by this court. See Benton County Council v. State, 1946, 224 Ind. 114, 65 N.E.2d 116, 119; Also Annotation Cases 1917C p. 688.
By section 1 of Ch. 229, Acts 1945, page 1071, § 29-4312, Burns' 1945 Supp., sometimes called , the time for holding the election of all the elective officers of all cities in Indiana was changed from the first Tuesday after the first Monday in November, 1946, to the first Tuesday after the first Monday in November, 1947. By Section 4 of the Act, § 29-4315, Burns' 1945 Supp. it is provided that the city officials to be elected under this act shall take office at twelve o'clock noon on the first day of January, 1948, and shall serve four years and until their successors are elected and qualified.
A 'Skip Election Law' was enacted in 1933, Acts 1933, Ch. 173, page 878, Sec. 10 of that law page 881, Burns' 1933, § 29-1809, provided:
The elective officers, who are appellees in this case, were elected at the 1942 general election, took their respective offices January 1st, 1943, and the period of their terms was fixed by this law. The skip election law of 1945 made it necessary that they serve an extra year from January 1, 1947, to January 1, 1948, agreeable with the statute aforenoted and with Art. 15, § 3, Indiana Constitution.
The questions presented are: (1) Is the extra year the appellee officers were required to serve a part of the term of office to which they were elected at the general election in November, 1942? (2) Does the law of Indiana (§ 49-1103, Burns' 1933) prohibit the payment to appellee officers for their services during such extra year, the additional salaries provided by Acts 1945,§ 1, Ch. 203, pages 668, 669, § 48-1223, Burns' 1945 Supp., supra? And (3) Art. 15, § 2, Indiana Constitution provides:
A question is presented whether this section of the Constitution was amended by the voters of Indiana at the general election held November 2, 1926, by changing the period at the end thereof to a comma and adding the following: 'nor shall the term of office or salary of any officer fixed by this constitution or by law be increased during the term for which such officer was elected or appointed.' We shall consider these questions in the order named.
(1) So far as the appellees are concerned, a definite and certain term of office resulted from the election of appellee, Mayor, City Clerk and each member of the common council at the 1942 General Election. By the law under which they were elected (Burns' 1933, § 29-1809, supra) this term is fixed at four years--from January 1st, 1943, to January 1st, 1947. To this term the Indiana Constitution appends for each a possible term 'and until his successor shall have...
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