165 Ind. 99 | Ind. | 1905
This case presents the question as to the right of appellant, a county assessor, to recover, as such, per diem allowances on account of the performance, during the year 1903, of services which the statute provides shall be performed by the county assessor in connection with the work of the county board of review, it appearing that dur
But a brief statement of some of the facts, which are exhibited in a special finding, is necessary. It was found that during the days of 1903 that the board of review of said county was in session its working hours were from 9 o’clock a. m. to about 4 o’clock p. m., and that during other hours of said days appellant performed the services sued for. As to the claim of the county against appellant, it was found that for the years 1901 and 1902 he filed statements, and received per diem allowances, for amounts aggregating $885 and $879, respectively, under and pursuant to appropriations attempted to be made by the county council, and it further appears that during said two years he was also paid as a member of the county board of review. A proper demand for the return of the money was made. 1
Preliminarily, it may be noted that he did not serve for an annual salary, that he was not required to keep an office open while attending upon the board of review, that the services sued for were closely correlated with those of said board, and that the act which created his office provided that he should perform the duties specified in the act, and subsequently made provision for all of his duties as county assessor and as a member of said board. Acts 1891, p. 199, §112. While these considerations may not be controlling upon the question as to whether the office of a member of the county board of review is a separate office from that of county assessor, yet they have a bearing upon the question as to whether the General Assembly intended to authorize that officer to split up his day’s service, for which he was paid as a member of the board of review, and to authorize an allowance for services performed, at hours when the board was not in session, as county assessor.
In Board, etc., v. Bromley (1886), 108 Ind. 158, the question was presented as to whether a township trustee was entitled to a per diem from the county as overseer of the poor during days that he had been paid by the township for his services as township trustee. In holding that he was not entitled to the extra allowance, this court said:
The fact that the officer’s time is occupied during the major portion of the business day as a member of the board is inconsistent with a claim for services in another capacity which the statute puts on a per diem basis “for the time actually employed.” The statement that appellant served during the ordinary business hours of a day in the capacity of a member- of the board of review involves the admission that he was not “actually employed” in the discharge of the duties of county assessor on that day. In its last analysis the question before us is this: May appellant recover two days’ pay for one day’s work, in the performance of services required by statute to be performed by him as an aid to the board, and also for his service as a member thereof, where one of the statutes providing for compensation is based upon pay by the day during the time actually employed ? We cannot thus construe the two provisions because of the element of time antagonism. It is our opinion that because of this a legislative purpose to allow compensation to the county assessor for the services sued for, during days that he is employed on the board and drawing pay therefor, can not be implied. Since the General Assembly of 1895 (Acts 1895, p. 207, §1) limited the days of service of the county assessor, the inference is but fair that it gave him compensation as a member of the board of review as a means of giving greater elasticity to the provision for compensation in respect to duties concerning which there was less reason to apprehend that improper claims for compensation would be presented, and for the
It is undoubtedly true, as was suggested in the case of Board, etc., v. Heaston, supra, that in an action for money had and received the law will not imply a promise to repay unless ex aequo et bono the defendant ought to refund. Moses v. Macferlan (1760), 2 Burr. 1005; Bize v. Dickason (1786), 1 T. R. 285; Brisbane v. Dacres (1813), 5 Taunt. *143; Badeau v. United States (1889), 130 U. S. 439, 9 Sup. Ct. 579, 32 L. Ed. 997; Lemans v. Wiley (1884), 92 Ind. 436; McFadden v. Wilson (1884), 96 Ind. 253; Lockwood v. Kelsea (1860), 41 N. H. 185; Franklin Bank v. Raymond (1829), 3 Wend. 69; Buel v. Boughton (1846), 2 Denio 91; Mayer v. Mayor (1875), 63 N. Y. 455; Carson v. M’Farland (1828), 2 Rawle (Pa.) 118, 19 Am. Dec. 627; Falconer v. Smith (1851), 18 Pa. St. 130, 55 Am. Dec. 611; Glenn v. Shannon (1879), 12 S. C. 570; Goddard v. Town of Seymour (1862), 30 Conn. 394; Foster v. Kirby (1862), 31 Mo. 496; Orman v. North Alabama, etc., Co. (1892), 53 Fed. 469; 1 Beach, Contracts, §660; 1 Pomeroy, Eq. Jurisp. (3d ed.), §182; 3 Pomeroy, Eq. Jurisp. (3d ed.), §1047; 1 Chitty, Pleading (16th Am. ed.), 362, note. As said by Professor Keener, Quasi-Contracts, 26, in the opening of his chapter, Recovery of Money Paid under Mistake: “That one is dealing with an equitable doctrine in discussing the sub
We are of opinion, however, where the legislature, for the purpose of safeguarding the treasury and preventing profligacy of expenditure, has made it unlawful for the county assessor to charge or to receive pay for more than a certain number of days; that, notwithstanding the peculiar character of an action on an implied promise, the maxim that ignorance of the law does not excuse should be given a direct application. As said by Professor Keener: “It is evident that public policy requires that ignorance of law shall not excuse the doing of acts which the welfare of society demands shall be prohibited.” Keener, Quasi-Contracts, 91. There is something of the same view in Broome v. Beers (1826), 6 Conn. 198, 212, where it was said concerning the presumed knowledge of a party that a certain deed had priority: “There is nothing in the case to repel the inference of the plaintiff’s knowledge, if, on the principles of equity, it ought to be presumed.”
The legislative enactment of 1895 (Acts 1895, p. 207, §1) stands for the judgment of the lawmaking power that it was unwise to leave the matter of the adjustment of these per diem allowances entirely open, and, if we permit appellant to retain what the board of commissioners unlawfully paid him, we place the county in the same situation as the General Assembly forbade it to be placed in. It was competent for the legislature to determine just how far the county should become indebted for such services, and, as it was made unlawful to pay more, the expenditure by the board was a waste or devastavit, and to this act appellant was a party.
Judgment affirmed. ■