Taggart v. State ex rel. Williams
| Decision Date | 21 March 1895 |
| Docket Number | 17,241 |
| Citation | 40 N.E. 260,142 Ind. 668 |
| Parties | Taggart, Auditor, et al. v. The State, ex rel. Williams |
| Court | Indiana Supreme Court |
Reported at: 142 Ind. 668 at 677.
From the Marion Superior Court.
The judgment is reversed, with instructions to sustain the appellants' demurrer to the alternative writ of mandate with leave to amend the pleadings or to file new pleadings and for further proceedings not inconsistent with this opinion.
Ayres & Jones, A. V. Brown and H. C. Allen, for appellants.
C. A Dryer, for appellee.
This was an action brought by the appellee's relator, as treasurer of the board of school commissioners of the city of Indianapolis, against the appellant, Thomas Taggart, auditor of Marion county, to obtain a mandate requiring said auditor to distribute the surplus dog fund which had, upon the first Monday of March, 1891, been paid to the treasurer of Marion county by the respective trustees of the several townships of said county; and requiring, also, that said auditor issue to the relator, as such treasurer of said board of school commissioners of said city, a warrant for the portion of such surplus fund which should come to said city upon a distribution of the fund, in the same manner as the interest upon the congressional school fund is distributed by law. The appellant, Samuel N. Gold, as trustee of Center township, and also as trustee of Center school township, in said county, being the township in which said city is situated, was, upon his petition as intervener, also made a party defendant in the trial court. Separate demurrers were filed by each of the defendants to the alternative writ of mandate, which were overruled and the rulings excepted to. Each defendant then filed a separate return to the alternative writ, to which demurrers by the appellee's relator were sustained, and the appellants excepted. The questions presented on this appeal are upon the rulings of the court upon the several demurrers.
The petition and alternative writ show that the sums paid to the county treasurer, on the first Monday of March, 1891, by the several township trustees of Marion county, as surplus dog fund, left after payment of all losses on account of sheep killed or maimed, amounted to $ 4,882.42, which sum remained in the hands of said county treasurer on the second Monday of March, 1891, and has since remained in the hands of said treasurer, although this relator has several times demanded of said auditor that he make distribution of said surplus dog fund, and issue to said relator, as treasurer of said board of school commissioners, a warrant for the payment of the portion of such surplus coming to said city.
It is contended by the relator, that the surplus fund so in the hands of the county treasurer on the first Monday of March, 1891, having been assessed and collected under the act in force March 7, 1883 (Acts 1883, p. 148), as amended by the act approved April 8, 1885 (Acts 1885, p. 161), should have been distributed on the second Monday of March, 1891, as provided in said last act, "for the schools of the county, in the same manner that interest upon the congressional school fund is distributed."
The appellants, on the other hand, contend that, inasmuch as the acts of 1883 and 1885 were repealed by the act on the same subject, approved March 5, 1891 (Acts 1891, p. 453; sections 2848 to 2864, R. S. 1894); and inasmuch as section 236 of the general act concerning taxation, approved March 6, 1891 (Acts 1891, p. 286; section 8654, R. S. 1894), was in force on said second Monday of March, 1891; therefore the distribution of the fund must be made under the provisions of said last mentioned section, which requires that the dog fund should "be paid over by the county treasurer to the proper township trustee," and that the surplus of said fund, left after payment of losses on account of sheep, should "be expended by such trustee for the use of the school revenue of the township."
After the judgment was rendered in this case, but before the appeal was taken, this court, in the case of Florer, Treas., v. State, ex rel., 133 Ind. 453, 32 N.E. 829, decided that when the act of March 6, 1891, concerning taxation, was passed, the laws of March 7, 1883, and April 8, 1885, in relation to the taxation of dogs, were not in force, having been repealed by the act of March 5, 1891, on the same subject; and, further, that said section 236 of the act of March 6, 1891, being in force on and after that date, made the township trustee the custodian of the dog fund for the purposes mentioned in the statute; and that, when properly applied for, the county treasurer is required to pay over said fund to such trustee; and to that holding we still adhere.
The primary purpose for which the dog fund is assessed and collected, is for the payment of losses suffered in the township by the killing and maiming of sheep by dogs. After this primary purpose has been satisfied, and there remains in the fund a surplus in excess of fifty dollars, the trustee is required, by said section 236, to expend such surplus "for the use of the school revenue of the township." As this provision of the law was in force on the second Monday of March, 1891, and has been in force ever since; it follows that the auditor could not be required on that day, or afterwards, as adjudged by the trial court, to "make distribution of the said sum of $ 4,882.42, the surplus of the county dog fund in the county treasury, for the schools of said county, in the same manner that the interest upon the congressional school fund is distributed under the law." The custody of the fund is in the township trustees of the several townships.
Counsel for appellee admits this to be the case as to the surplus of such parts of the dog fund as have been assessed and collected since the present law went into effect, but insists that the distribution of all funds assessed and collected prior to the passage of the present law must be made under the former laws. The reasoning by which such conclusion is reached, if ingenious, is fallacious. Political and municipal corporations and their officials are but the creatures of the law-making power, and have no vested rights in public funds entrusted to their care. Such funds are always under the sovereign control of the Legislature, subject only to such limitations as may be imposed by the constitution. Certainly, in this case, townships that had diminished or wholly exhausted their dog fund, in paying for their killed or maimed sheep, had no vested right in any part of a dog fund raised by taxation on dogs in other townships. The Legislature had an undoubted right to say that such dog fund should be put into the custody of the several township trustees of the respective townships in which the fund had been raised by taxation, no matter under what laws the fund had been assessed or collected. It was most strictly in accordance with the constitution that the fund should, in each case, be distributed and used in the township in which it was levied. Such change in the law was getting nearer to the constitution, rather than farther away from it. It might well be questioned whether the act of 1885, which created a county dog fund, and supplied deficiencies in one township by drawing from the fund raised in other townships, was itself in harmony with the constitution; but the question is not before us, and we do not decide it.
It is finally...
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