Mentzer v. Marion County

Given, C. J. It is conceded that plaintiff may maintain this action if recovery may be had thereunder. It will [480] be observed that- the services for which a recovery is sought were rendered during the years 1896 and 1897; therefore it is to the statute then in force that we refer. Section 771 of the Code of 1873 provided: “When a county officer receiving a salary is compelled by the pressure of the business of his office to employ a deputy the board of supervisors may make a reasonable allowance to such deputy.” Chapter 75 of the Acts of the Twenty-fifth General Assembly, which took effect January 1, 1896, and remained in force until the adoption of the Code of 1897, provides in substance as follows: Section 1 requires all sheriffs to report quarterly, under oath, all fees charged or taxed and all fees collected by them or their deputies, including fees for which the county is liable, except dieting prisoners; and that annual settlement be made with the board on the first Monday in January of each year. Section 2 requires that sheriffs in counties having a population of more than 28,000 and less than 45,000 shall pay to the county treasury all fees in excess of $2,300 per annum, and any counties having a population of more than 45,000 all fees in excess of $3,000 per annum; “also a statement of all expenses actually and necessarily paid in serving a process in criminal cases,” which amount shall be allowed and paid out of the county treasury. “The fees retained by the sheriff under the provisions of this act shall be in full compensation for all services.” Section 3 is as follows: “Each sheriff shall be allowed a deputy whose salary shall be fixed by the board of supervisors of his county, not exceeding $1,000 per annum; and provided further, that such board of supervisors may allow more than one deputy at a salary not exceeding $1,000 per annum each, when they shall deem the same necessary.” It is conceded that the population of Marion county was less than 28,000. The claim of appellee is that this sheriff was not a salaried officer, and therefore not entitled to an allowance for a deputy under said section 771. Appellant contends that he was entitled to a deputy at a salary to be [481] fixed by tbe board of supervisors, under said section 3, whether or not he was a salaried officer, and regardless of the population of the county. Said chapter 15 is entitled “An act providing for limiting the compensation of sheriffs and their deputies.” We have seen that it does limit the compensation of sheriffs and their deputies. As to deputies it is provided that their salary shall not exceed $1,000 per annum. Said section 3 is without, qualification either as to the class-of sheriffs to whom or the counties in which deputy sheriffs shall be allowed. It says: “Each sheriff shall be allowed a deputy,” and we see nothing in the title nor in the act to warrant ingrafting a qualification on said section. We think that plaintiff was entitled to be allowed a deputy during said years, and that he is entitled to recover therefor upon establishing the allegations of the petition. It follows from this conclusion that the demurrer should have been overruled. —Reversed.