The Board of Commissioners of Vigo County v. Davis

• Decision Date: 11 January 1894
• Docket Number: 17,006
• Parties: The Board of Commissioners of Vigo County v. Davis et al
• Court: Indiana Supreme Court

36 N.E. 141

136 Ind. 503

The Board of Commissioners of Vigo County v. Davis et al

No. 17,006

Supreme Court of Indiana

January 11, 1894

From the Vigo Superior Court.

S. R Hamill, for appellant.

I. N Pierce and S. B. Davis, for appellees.

Hackney J. McCabe, J.

OPINION

Hackney, J.

The appellees, twenty-one in number, proceeding under the act of the General Assembly, approved March 4th, 1893, Acts 1893, p. 341, petitioned the appellant, representing that the salaries, as provided by law, of the Honorable David N. Taylor, judge of the circuit court of Vigo county, and Honorable Cyrus F. McNutt, judge of the superior court of said county, were inadequate compensation for their services as such judges, and that such salaries should be increased as to each of said judges in the sum of fifteen hundred dollars. The petitioners prayed a hearing, as provided in said act, and that said salaries be so increased.

Such proceedings were had before said appellant that, after hearing evidence, the prayer of the petition was denied.

From this ruling of the board the petitioners appealed to the superior court, where the petition was heard by a special judge, and the prayer thereof was granted.

From the judgment of the Superior Court, this appeal is prosecuted, and several errors are assigned, one of which alleged errors is in the action of said superior court in overruling the motion of the appellant to dismiss said appeal from the action of the board. The alleged reason for the dismissal of said appeal was that no appeal would lie from the said action of the commissioners.

The character and effect of the action of the commissioners is also presented by the appellee's motion to dismiss this appeal, and we find it our duty at the threshold of this controversy to determine this question, for upon it depends the jurisdiction of this court. It is manifest that if no appeal could lie from the action of the commissioners the superior court had no jurisdiction, and its proceedings can not be reviewed here.

Where the duty of the commissioners involves judicial action, an appeal lies from its judgment, unless the right of appeal is denied expressly or by necessary implication from the statute creating the duty. Where that duty does not involve judicial action, but consists in the performance of administrative, ministerial, or discretionary powers, no appeal lies from such action, unless it is expressly authorized by statute. Bunnell v. Board, etc., 124 Ind. 1, 24 N.E. 370; Farley v. Board, etc., 126 Ind. 468, 26 N.E. 174; Platter v. Board, etc., 103 Ind. 360, 2 N.E. 544; Waller v. Wood, 101 Ind. 138; Board, etc., v. State, ex rel., 106 Ind. 270, 6 N.E. 623; Padgett v. State, 93 Ind. 396; O'Boyle v. Shannon, 80 Ind. 159; Grusenmeyer v. City of Logansport, 76 Ind. 549; Baltimore, etc., R. R. Co. v. Board, etc., 73 Ind. 213; Sims v. Board, etc., 39 Ind. 40; Moffit v. State, ex rel., 40 Ind. 217; Bosley v. Ackelmire, 39 Ind. 536.

To which class the case in hand belongs must be determined from the act of the Legislature, under which these proceedings were had, and to that end we set out the act, which is as follows:

"Section 1. Be it enacted by the General Assembly of the State of Indiana, That the salaries of the judges of the circuit and superior courts of this State shall be twenty-five hundred dollars annually, payable quarterly out of the State treasury: Provided, That in all judicial circuits of this State containing any city which had a population of more than thirty thousand, as shown by the last preceding United States census, whenever twenty or more resident freeholders of the county in which such city is situated shall, by their petition, filed with the board of commissioners of such county, represent that the annual salary of the judge of said circuit or superior court, as otherwise provided by law, is not an adequate compensation for the services of such judge, and should be increased in a sum to be specified in such petition, then it shall be the duty of the board of commissioners of such county, in open session, without delay, and at either a regular or special term of such board, to consider such petition and hear evidence thereon, and thereupon within the limits of such evidence, but in no event in excess of the sum of fifteen hundred dollars, or in excess of the sum specified in such petition, such board of commissioners may, by entry of record, fix and allow a certain sum as an addition to or increase of the annual salary of the judge of such circuit or superior court.

"Sec. 2. Upon such allowance being made by such board of commissioners, the sum so allowed shall be payable only out of the treasury of the county in which such petition is required to be filed, and shall be payable quarterly upon warrants drawn by the auditor of such county upon the treasurer thereof, and from and after the date of such allowance by such board, the same shall be held as an addition to the annual salary of such judge, as otherwise fixed and provided by law, and shall not be diminished during the term of office of such judge; and any such allowance, and the proceedings of any board of commissioners in relation thereto, if in compliance with the provisions of this act, shall be final and conclusive."

The third section declares an emergency.

Several features of the act indicate to our minds the intention of the Legislature to commit to the board of commissioners a discretionary power as to the increasing of judges, salaries, and not as conferring a power the exercise of which could be held mandatory.

The language of the act is permissive in that it entrusts to the board a discretion as to the amount to be fixed as representing the increase of salary. The language is that "such board * * may fix and allow a certain sum." The word may has, in some instances, been construed as the equivalent of the word shall, but in no instance, to which our attention has been called, where it was evident that the act, from other points of view, conferred discretionary powers, nor where it was not evident from the whole act, that the legislative direction was mandatory.

The application of the rule that may is to be interpreted for shall depends on what appears to be the true intent of the statute, and the ordinary meaning of the language must be presumed to be intended, unless it would manifestly defeat the object of the provision. Sedgwick's Con. Stat. and Const. Law, p. 377; Minor v. Merchants' Bank, 1 Peters, 44.

It is earnestly contended by counsel for appellees, that the act does not contemplate adversary parties or proceedings in the sense that claims against counties are prosecuted. If it were conceded that this construction is correct, it but argues that the Legislature did not intend to deprive the commissioners of discretion in the matter of granting an increase of salary in any sum.

The legislative grant of power to increase salaries certainly involved the duty of judging of the wisdom and propriety not only of the amount to be added, but as to whether any addition should be made. If this duty was not placed upon the commissioners, it had but one other place to rest, and that was upon the twenty petitioners. We can not bring ourselves to the belief that the Legislature intended to place the authority with the petitioners of judging conclusively that an increase of salary was proper, and that the only duty or power of the commissioners was to adjudge the will of the petitioners, with the incidental right to fix the amount of the additional salary.

Another indication of the legislative intent to bestow a discretionary power upon the commissioners is found in the last clause of the second section in these words: "Any such allowance, and the proceedings of the board of commissioners in relation thereto, if in compliance with the provisions of this act, shall be final and conclusive."

What shall be final and conclusive? Not only the sum fixed, but the proceedings of the board in relation thereto.

But, it is said, such provision must be held not to imply a discretionary power, but as guarding the proceedings and the result from collateral attack, or from being questioned except by direct proceeding, such as on appeal. To this contention is cited the case of Grusenmeyer v. City of Logansport, supra, and while we observe that the reasoning of the learned and able judge who wrote the opinion in that case would support the contention here, yet such question was not before the court in that case, and, of course, the value of the case as authority depends upon the question decided, and not upon the argument, illustrations, or reasoning of the judge, when not directed to the point in dispute. See State, ex rel., v. Hyde, 129 Ind. 296, 28 N.E. 186.

In that case the language of the statute standing in the place of the clause here quoted was that the "order shall be conclusive in all suits by or against such incorporation." It was there said that such provision "should not be regarded as an implied denial of the right of appeal," and with the conclusion reached we fully concur. We think it manifest that the expression there employed was designed to protect the incorporation proceedings from collateral attack.

The order was made "conclusive in all suits by or against such incorporation," and it could not be implied that the order of incorporation was one of the suits concluded. The statute under investigation in this case is of a widely different character. The allowance, if any, is "final and conclusive," and the proceedings in relation thereto, regardless of the function involved, whether judicial, administrative, or ministerial, are "final and conclusive."

This provision is not confined to other suits, but is sweeping in its...