The State ex rel. Smith v. McClelland

• Decision Date: 06 March 1894
• Docket Number: 17,152
• Citation: 37 N.E. 799,138 Ind. 395
• Parties: The State, ex rel. Smith, Attorney-General, v. McClelland, Trustee, etc
• Court: Indiana Supreme Court

37 N.E. 799

138 Ind. 395

The State, ex rel. Smith, Attorney-General, v. McClelland, Trustee, etc

No. 17,152

Supreme Court of Indiana

March 6, 1894

Petition for Rehearing Overruled June 22, 1894.

From the Marion Circuit Court.

Judgment is reversed, and the cause remanded, with instructions to overrule the demurrer, and for further proceedings not inconsistent with this opinion.

A. G Smith, Attorney-General, A. Zollars and L. O. Bailey, for appellant.

W. N Harding, A. R. Hovey, J. Morris, R. C. Bell, J. M. Barrett and S. L. Morris, for appellee.

OPINION

McCabe, J.

This action was brought by the State of Indiana, on the relation of the attorney-general, for the purpose of recovering a balance of $ 322.05 of State school revenue for tuition, which was unexpended and in the hands of appellee on the first Monday of July, 1893, left over from the State tuition revenue apportioned to said township for the year ending the day previous, and which it is stated appellee has refused and neglected, and still refuses and neglects to refund and pay over to the treasurer of Marion county, though often requested so to do. The charge in the complaint was that the tuition revenue received by appellee, from all sources, had been commingled and expended from as an entirety. The suit was commenced under the proviso of the act of March 3d, 1893 (Acts 1893, pp. 195-6). The act is an amendment of section 114 of the school law of 1865, R. S. 1881, section 4482.

The proviso reads as follows: "Provided, however, that any school corporation not expending the sum total of the tuition revenue apportioned to it by the State, shall, on the first Monday in July annually, report to and return to the county treasurer of the county in which said school corporation is situated, the unexpended balance of tuition revenue from said source in excess of $ 100, and the county auditor of said county shall include all such unexpended balances in his report to the State Superintendent of Public Instruction, as tuition revenue collected in his county and ready for distribution at the next apportionment. Any township school trustee or treasurer of the board of school trustees of incorporated towns and cities refusing or neglecting to refund the said unexpended balance of tuition revenue as herein provided, shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined not less than double the amount so withheld."

The action was begun by filing a petition praying for an alternative writ of mandate to compel the appellee, as trustee of Wayne township, in Marion county, to pay over to the treasurer of said county the sum above mentioned for redistribution by the State Superintendent of Public Instruction. The alternative writ stating the above recited facts was duly issued. The appellee appeared and demurred to the writ on the ground, 1st, that the same showed that appellant, the attorney-general, had no legal capacity to sue; 2d, that there is a defect of parties defendant; 3d, that the writ does not state facts sufficient to constitute a cause of action.

The circuit court sustained the demurrer, to which the appellant excepted, and failing to plead further, the appellee had judgment upon the demurrer.

It is made the duty of the attorney-general, by statute, to institute and prosecute all necessary proceedings for the collection of all moneys where the same is by law required to be paid to the State, or any officer in trust for the State, and in all cases where the officers, whose duty it shall be to collect the same, shall fail, neglect, or refuse, after a cause of action in favor of the State shall have accrued. Elliott's Supp., section 1805.

It was held by this court, in Board, etc., v. State, ex rel., 92 Ind. 353, that the attorney-general was the proper relator in a suit to recover moneys belonging to the common school fund of the State. To the same effect are Board, etc., v. State, ex rel., 116 Ind. 329, 19 N.E. 173, and Board, etc., v. State, ex rel., 122 Ind. 333, 24 N.E. 347.

If, therefore, the unexpended balance of the tuition revenue apportioned for the previous year to Wayne township, in Marion county, by the State, in excess of $ 100, which the writ states amounts to $ 322.05, and the truth of which is admitted by the demurrer, belongs to the common school tuition revenue of the State, and a valid law of the State requires the trustee of the township to pay said amount to the treasurer of the county, and he has failed, neglected, or refused to so pay over, the action is properly brought on the relation of the attorney-general. It will be observed that the statute above quoted requires, in such cases, such balances to be returned and paid over to the county treasurer for redistribution by the State Superintendent of Public Instruction, at the next apportionment of school revenue for tuition. The whole question, therefore, depends upon the validity of that statute, not only as to the legal capacity of the attorney-general to prosecute the action as relator, but also as to the sufficiency of the facts to constitute a cause of action.

The other ground of demurrer, namely, that there was a defect of parties defendant, has been waived by the appellee, in so far as he could waive the same, by failing to argue it in his brief. The judgment being in his favor on the demurrer, the presumption that always prevails in favor of the correctness of the action of the trial court on appeal, would, perhaps, require us to uphold the judgment below if any one of the grounds assigned in the demurrer was well taken, whether appellee pointed out such objection in his brief or not. But no reason has been suggested why there is a defect of parties defendant in the demurrer, and the law requires such a demurrer to designate the proper parties, and the demurrer failing to so designate such parties, it is insufficient in form. 1 Burns' Rev. 1894, section 342; Kelley v. Love, 35 Ind. 106. Vansickle v. Erdelmeyer, 36 Ind. 262; Marks v. Indianapolis, etc., R. W. Co., 38 Ind. 440.

The demurrer not being sufficient in form, as to defect of parties defendant, the appellee is in the same situation as if he had not demurred for defect of parties defendant at all. In such case such objection is deemed waived. 1 Burns' Rev. 1894, section 346.

We, therefore, hold that the objection as to defect of parties defendant was waived by the appellee in failing to file a demurrer designating the proper parties defendant. The only question, therefore, left for our consideration and decision is whether the statute in question is constitutional. Almost the entire argument, both oral and in the briefs, on both sides, conducted at great length and signalized by much learning and research, spiced with laudable zeal and marred by not a little animosity, has been devoted to that question as the controlling one in the case. The appellee's counsel have assailed the statute from every standpoint, and have leveled at it many blows that are not constitutional objections. With such objections to a statute, the courts have nothing whatever to do. With the justice, the propriety, the policy, the advisability or desirability or undesirability of a statute, the courts can have nothing whatever to do, so long as the act does not infringe some provision of the constitution, State or Federal, or some valid treaty or law of Congress. Such objections must be made to the Legislature. Hedderich v. State, 101 Ind. 564; Cooley's Const. Lim., 201-204.

Nor can the courts inquire into the motives of the Legislature in passing an act in order to overthrow the same. Cooley's Const. Lim., 220-222.

No attempt has been made in that direction, in this case, except that the appellee's counsel has characterized the act in question as "a legislative fraud." But, if we shall find it within the power of the Legislature to pass the act, that ends the inquiry.

The State Legislature possesses all legislative power, except such as has been delegated to Congress and prohibited by the constitution of the United States, to be exercised by the States, and such as are expressly or impliedly withheld by the State constitution from the State Legislature. Cooley's Const. Lim., 104.

The only limitations, therefore, upon the power of the Legislature are those imposed by the State constitution, the Federal constitution, and the treaties and acts of Congress adopted and enacted under it. Hedderich v. State, supra.

It, therefore, was said in several cases by this court that "the legislative authority of this State is the right to exercise supreme and sovereign power, subject to no restrictions except those imposed by our own constitution, by the Federal constitution, and by the laws and treaties made under it. This is the power under which the Legislature passes all laws." Beauchamp v. State, 6 Blackf. 299; Maize v. State, 4 Ind. 342; Fry v. State, 63 Ind. 552; Clare v. State, 68 Ind. 17; McComas v. Krug, 81 Ind. 327; Campbell v. Dwiggins, 83 Ind. 473.

The sole contention here is that the act is in conflict with the provisions of the constitution of the State.

It was said by this court, in McComas v. Krug supra, that "Such questions are always regarded by the courts as of serious importance. The judiciary look to the acts of the Legislature with great respect, and reconcile and sustain them, if possible. The General Assembly is the immediate exponent of the popular will,--expressly delegated to clothe that will with the forms of law. The presumption that such a body has sanctioned enactments in violation of the constitution, is not to be lightly indulged. That the act is imperfect or impolitic, is not enough. These defects subsequent legislation can remove by amendment or repeal. To bring its validity within...