42 Ind. App. 375 | Ind. Ct. App. | 1908
Appellee, as a taxpayer of the city of Bloomington, Indiana,. brought this suit against the appellant, the auditor of Monroe county, to recover $460 which had been paid him as such auditor by said city, for entering
The complaint is in one paragraph. Issues were joined by general denial. The court made a special finding of facts, stated conclusions thereon, and entered a decree for ’$460 in favor of appellee.
Overruling the demurrer for want of facts to the complaint, sustaining the separate demurrer to -the second, third and fourth paragraphs of appellant’s answer, and the conclusions of law stated on the special findings, are assigned as errors.
The same questions arise upon the various specifications of error, and it will be necessary to consider only the alleged error on the conclusions of law.
The court finds specially as follows, to wit: The appellee is, and has been continuously for the ten years last past, a resident taxpayer of the city of Bloomington, Monroe county, Indiana. Certain defendants (naming them) were the duly elected, qualified and acting mayor and members of the common council of said city April 18, 1905, and at the time of filing this suit. The appellant is now and has been continuously since November 39, 1900,. the auditor of Monroe county, Indiana. The city of Bloomington during all of said time was the county seat of Monroe county, Indiana, and during the years 1900 to 1904 inclusive said city provided in its ordinance levying its taxes for said years that the tax so levied should be entered by said auditor upon his tax duplicates and collected by'the treasurer of said county as other taxes for state and county purposes were collected. In each of said years the clerk of said city certified a copy of said ordinance to the auditor of said county^ and the same was filed with said auditor and entered by him upon his duplicates as city taxes against all the property and polls within the corporate limits of said city. On October 16, 1901, the appellant filed in the office of the clerk of said city
The court stated the following conclusions of law on the foregoing-facts: There is due the city of Bloomington from the defendant, Samuel M. Kerr, the sum of $460, and the plaintiff should recover said sum from said Kerr, for the use and benefit of said city and all of its taxpayers. The defendant, Kerr, should be ordered to pay said sum of' money to the clerk of the Monroe Circuit Court for the use and benefit of said city and its taxpayers. Exception was duly reserved by the appellant to said conclusions of law.
Section 7226 Burns 1908, Acts 1895, p. 319, §21, provides:
Section 4249 Burns 1901, Acts 1885, p. 199, provides that the board of trustees of any incorporated town, and the common council of any city, may, by a provision contained in the ordinance or resolution fixing the tax levy for any year, provide that the taxes so levied shall be entered by the auditor of the proper county upon his duplicates, and collected by the treasurer of such county as other taxes for state and
Section 7226, supra, reads: -“The county officers named herein, shall be entitled to receive for their services the compensation specified in this act, * * * and they shall receive no other compensation whatever. ’ ’
Section 7279 Burns 1908, Acts 1895, p. 319, §74, fixes the compensation of the auditor of Monroe county at $2,300. That the auditor was not entitled to the allowance made to him is clearly settled by the sections of the statute cited in Town of Paoli v. Charles (1905), 164 Ind. 690.
The further point made is that the office of auditor is a constitutional office (Const., Art. 6, §2); that the legislature cannot impose duties upon a person holding a constitutional office which do not pertain to such office; that the duties of a county auditor appertain to county affairs only, and that the auditor cannot be compelled to perform without compensation duties with reference to city affairs.
It is finally argued in behalf of appellant that a demand was necessary upon bringing suit to put him in default, and, as the special findings are silent on the question of any such demand, the court erred in its conclusions of law. Appellant received the money in question in violation of law. §2105 Burns 1901, §2018 R. S. 1881; §6548, supra; Eder v. Kreiter, supra; Board, etc., v. Heaston, supra; Board, etc., v. Buchanan, supra; Town of Paoli v. Charles, supra.
Judgment affirmed.