State ex rel. McManamon v. Felger

Martin, J. This is an action brought by the Attorney General on the relation of the State of Indiana as provided by statute, Burns’ 1943 Replacement, § 60-237, against the appellee, a former Treasurer of Allen County. The basis of the action was the charge or claim asserted against the appellee by the report of an examination of the Treasurer’s office by the State Board of Accounts. The claim and action is that the appellee received and retained a compensation greater than that provided and allowed by law. Appellant’s complaint is in two paragraphs to each of which a demurrer for want of facts was sustained and upon appellant’s refusal to plead further, judgment was entered that appellant take nothing and that the appellees recover with costs. This review is concerned solely with alleged error in sustaining such demurrers. The complaint is based up [694] on the provisions of the Acts of 1945, ch. 192, § 1, p. 610. This Act amended the Acts of 1937, ch. 53 § 1, p. 294, which latter statute had amended the Acts of 1933, ch. 21, §6, p. 88; Burns’ 1933, §49-1006, and reads in part as follows: “Sec. 6. The county treasurers of the state shall receive as their property, in addition to the salary herein provided, six per cent of delinquent taxes collected on personal property and poll taxes during each calendar year and they shall also be entitled to charge and collect as their personal property, subject to the limitations hereinafter made, a demand fee of fifty cents from tax delinquents where collections result from personal demands: Provided, That the aggregate of all salaries, demand fees, and percentages of delinquent tax collections as herein provided for and so received by any treasurer, may not exceed ten thousand dollars in any county in any one year, it being the intention of this act to restrict each county treasurer of the state to a total compensation of ten thousand dollars in any one year for all services rendered by him:” The appellee contends that the complaint is based upon the incorrect assumption that the salary of the county treasurer as ex officio city treasurer is not included in the limitation of ten thousand ($10,000) Dollars under the provisions of the above Act. In construing this section of the statute, we are also concerned with the Acts of 1905, ch. 129, § 195, p. 219; Burns’ 1950 Replacement, § 48-6701, which reads as follows: “The city treasurer of every city shall be head, of the department of assessment and collection of taxes for such city: Provided, That in any city of the- first, second or third class which is the county seat of the county in which such city is located, and which city now has a city treasurer, such office of city treasurer, shall on and after the expiration of the term for which he was elected, be abolished, and the records, books and papers of such office, [695] except as otherwise herein provided, shall be turned over to and conserved by such other officers of such city as the common council may designate; and thereafter in every city of the first, second or third class which is the county seat of the county in . which any such city is located the county treasurer of such county shall be, ex officio, treasurer of such city, and shall perform all the duties in this act required to be performed by city treasurers; and whenever, in this act, in relation to cities of the first, second or third classes which are county seats, the term treasurer, or city treasurer, is used, such designation shall apply to the county treasurer acting as treasurer of any such city: Provided, further, That nothing in this act shall be so construed ■ as to affect any law now or hereafter in force in relation to common schools or other town or city schools or to the assessment and collection of taxes therefor, or in relation to school towns, or school cities, except as in this act expressly provided.” The statute applying to Fort Wayne, applicable to this case is Acts of 1943, ch. 84, § 1, p. 263; Burns’ 1950 Replacement, §48-1226(a). This section provides a salary for city treasurers of thirty-six hundred ($3,600) Dollars, and reads in part as follows: “In cities of second class having a population of more than thirty-five thousand (35,000), according to the last preceding United States census, and an assessed valuation of more than seventy-five million dollars ($75,000,000) and which own and operate three (3) or more municipal utilities . . . the city treasurer shall be paid an annual salary of thirty-six hundred dollars ($3,600), which may be increased by ordinance to any amount not exceeding six thousand dollars ($6,000);....” Acts of 1933, ch. 21, § 4, p. 88; Burns’ 1933, § 49-1004, provides in part: “In each of the counties of the state of Indiana, the annual salaries of officials hereinafter named shall be as follows: .... Allen county: . . . . treasurer, forty-four hundred dollars ($4,400) [696] The appellant concedes that under these statutes the appellee, Walter A. Felger, herein is entitled to the basic salary as County Treasurer of forty-four hundred ($4,400) Dollars and the salary as City Treasurer of thirty-six hundred ($3,600) Dollars, a total of eight thousand ($8,000) Dollars, but contends that he can receive from collections of personal property tax only the difference between this amount and the maximum sum of ten thousand ($10,000) Dollars. On the contrary, it is contended by the appellees that the 1945 Act above set forth applies in its ten thousand ($10,000) Dollar limitation only to the basic salary as county treasurer and the collection of delinquent personal property tax and that his salary as city treasurer is not contained in this limitation. The General Assembly has the power to abolish the office of city treasurer and to impose upon a county treasurer the duties ordinarily performed by a city treasurer. Conter, Treas. v. Post (1935), 207 Ind. 615, 194 N. E. 153; The State, ex rel. Ewing v. Bell (1888), 116 Ind. 1, 18 N. E. 263; The State, ex rel. Yancey v. Hyde (1891), 129 Ind. 296, 28 N. E. 186. We are concerned, therefore, in determining whether the Legislature intended, as appears in Acts of 1905, ch. 129, § 195, p. 219; Burns’ 1950 Replacement, § 48-6701, to abolish the office of city treasurer in all cities of the first, second or third class where any such city was a county seat and to impose the duties of such office upon the county treasurer. In Conter, Treas. v. Post, supra, the court in construing this same section said: “. . . . It is perfectly clear that the legislative intent in § 195 was to abolish the office of city treasurer. But in providing for the performance of the duties of the office of city treasurer by the county [697] treasurer almost the same language was employed as is used in the present act. In the act of 1905 the words ‘county treasurer of such county shall be, ex officio, treasurer of such city’ clearly were not intended to continue the office of city treasurer and to make the county treasurer, ex officio, a city officer holding the office of city treasurer, since the act expressly abolished that office. Also it is evident that treasurer as used in the phrase ‘treasurer of such city’ did not mean treasurer in the sense of an officer of the city, but merely indicated the nature of the functions which would devolve upon the county treasurer as a part of his duties as county treasurer. . . .” We recognize, of course, that the Legislature may confer, and in the past has conferred from time to time new and additional duties upon the county treasurer for which the Legislature has provided extra compensation. The acts here under consideration are typical illustrations of such legislation. However, the Legislature may by later enactment withdraw such extra compensation and leave the duties obligatory. Gates v. Hickman (1947), 117 Ind. App. 414, 70 N. E. 2d 441, and cases there cited. It is clear that it is these “extra pay” statutes that the Legislature had in mind and the extra pay feature upon which it sought to place a maximum of ten thousand ($10,000) Dollars when it said in the 1945 Act, “That the aggregate of all salaries, demand fees, and percentages of delinquent tax collections as herein provided for and so received by any treasurer, may not exceed ten thousand dollars in any county in any one year, it being the intention of this act to restrict each county treasurer of the state to a total compensation of ten thousand dollars in any one year for all services rendered by him.” [697] We are of the opinion that the language of Acts of 1905, ch. 129, § 195, p. 219; Burns’ 1950 Replacement, [698] § 48-6701, reasonably construed, eliminates the office of city treasurer in cities of the first, second or third class which are the county seats of the counties in which such cities are located. We further conclude that the provision that the county treasurer be ex officio treasurer of such city of the first, second or third class which is the county seat must be construed to add to the county treasurer the functions and duties which had previously been performed by the treasurer of cities of the first, second or third class which are the county seats of the counties in which such cities are located. It is our opinion that the language cannot be construed to continue or revive the office of city treasurer and to confer this office upon the county treasurer. We are of the opinion that the salary received by the county treasurer for services rendered as ex officio city treasurer is to be considered a part of the compensation of the county treasurer under the limitation of ten thousand ($10,000) Dollars in one year as provided by the Acts of 1945, ch. 192, § 1, p. 610, subject to the qualification exempting treasurers until January 1, 1946, in counties of from two hundred thousand (200,000) to three hundred thousand (300,-000) population. Judgment reversed with instructions to overrule- the appellees’ demurrer to each paragraph of the appellant’s complaint. Royse, J., dissents' with opinion. Bowen, J., dissents with opinion.