Mueller v. Board of Commissioners, 73 Ind. App. 196

Mueller v. Board of Commissioners

73 Ind. App. 196 | Ind. Ct. App. | 1920

Nichols, C. J.

Action by appellant, a justice of the peace of Center township, Marion county, Indiana, *197against appellee, to collect certain fees claimed to be due and unpaid, for services rendered by appellant in holding insanity inquests, as required of him by §3682 et seq. Burns 1914, §2810 R. S. 1881.

There, was a demurrer to the complaint, which was sustained and, appellant failing to plead further, but electing to stand by his complaint, there was a judgment against him that he take nothing. From this judgment, this appeal.

1. The only error assigned is the court’s ruling on the demurrer. Appellee contends that the court has no jurisdiction, for the reason that it does not appear that the claim sued on had first been presented to the board of commissioners and disallowed by the board, as provided in §§6006-6008 Burns 1914, §§5760, 5761 R. S. 1881; Acts 1897 p. 187. It is true, as contended, that claims against the county must first be presented to the board of commissioners' for allowance or disallowance before suits can be filed thereon, but, after the action of the board in disallowing the claim, the claimant may at his option appeal, or he may bring an original action, §6019 Burns 1914, §5769 R. S. 1881; and it is not necessary to allege in the complaint that these steps have been taken. Bass Foundry, etc., Works v. Board, etc. (1888), 115 Ind. 234, 17 N. E. 593; Board, etc. v. Leggett (1888), 115 Ind. 544, 18 N. E. 53; Board, etc. v. Brod (1891), 3 Ind. App. 585, 588, 29 N. E. 430; Board, etc. v. Osburn (1892), 4 Ind. App. 590, 31 N. E. 541.

2. *1983. 2. *197It is next contended by appellee, as appears by its second specification of memorandum with its demurrer, that appellant is entitled to no fees for acting as an examining officer in holding insanity inquests, or in delivering the. transcripts to the clerk of the Marion Circuit Court, for the reason that the statutes of Indiana provide that a justice of the *198peace in a township like Center township, Marion county, Indiana, shall receive a salary of $2,000, which shall be in full of all compensation, fees, or allowances mentioned and set forth in the section providing for fees. It is to be noted that there is no averment in the complaint that indicates whether Center township, Marion county, Indiana, has a population that puts it in the class of townships in which the justices of the peace receive a salary compensation of $2,000, but the court will take judicial knowledge that its population so classifies it. Board, etc. v. Garty (1903), 161 Ind. 464, 68 N. E. 1012. Sections 3682 et seq., supra, specify the services that are required of justices of the peace in insanity inquests, and then §3732 Burns 1914, §2871 R. S. 1881, in force since 1853, provides that justices of the peace shall receive for services, as examining officers, in such proceedings, each $2 per day, and §3699, as amended in 1901 (Acts 1901 p. 529), provides for a fee of $1 for depositing the papers prepared with the clerk of the circuit court. Each of these fees is payable out of the county treasury. Section 2 of “An Act concerning justices of the peace, presenting their number and fixing their compensation,” approved, March 15, 1913, Acts 1913 p. 834, §1865 Burns 1914, provides that “The fees of justices of the peace shall be as follows:” Then follows a list of fees for services, in which list no provision is made for compensation for services in insanity inquests. It is then provided that: “In any township in the state wherein is located a city having a population of one hundred thousand or more, * * * no fees named in this section * * * shall be charged or collected, but the justices of the peace, and each of them, shall receive * * * a salary at the rate of $2,000 per annum, payable quarterly * * * out of the tovmship treasury, which said salary shall be in full *199of all compensation, fees, or alloioances, as mentioned and set forth in this section.” If appellee’s contention is sustained, then the court must hold that all of the justices of the peace of the state, which means those who receive no salary, as well as the very few who do, must perform their services in insanity inquests, paying their own expenses, without compensation. In view of the meager compensation of such officers, especially of those who receive no salary, there is a strong presumption that the legislature had no intention of perpetrating such an injustice upon such officers. In Cleveland, etc., R. Co. v. Blind (1914), 182 Ind. 398, 105 N. E. 483, 491, the following rules of construction are given: “(1) Repeals by implication are disfavored, and are never recognized in the absence of irreconcilable repugnancy (9 Ind. Dig. Ann. Statutes, §159b) and then only to the extent of such repugnancy. Carver v. Smith (1883), 90 Ind. 222, 46 Am. Rep. 210; Jeffersonville, etc., R. Co. v. Dunlap (1887), 112 Ind. 93, 13 N. E. 403. (2) Where two acts are seemingly repugnant, they must, if possible, be so construed that the latter will not operate as a repeal of the former. Blain v. Bailey (1865), 25 Ind. 165. (3) There is no irreconcilable conflict, unless, after the application of every recognized rule of construction, substantial harmony is found impossible. Hay v. City of Baraboo (1906), 127 Wis. 1, 105 N. W. 654, 115 Am. St. 977, 3 L. R. A. (N. S.) 84. * * * (6) It is a maxim of general application, that general things do not derogate from things special. * * * (7) Where a particular intention is expressed in an act, which conflicts with a general intention expressed in a later one, the particular intention shall be given effect, leaving the later act to operate only outside the scope of the former. State, ex rel. v. McCardy (1895), 62 Minn. 509, 64 N. W. 1133; 1 Lewis’ Sutherland Stat. Const. (2d ed.) §275, citing Dwarris, Statutes 765; *200Black, Interp. of Laws 118; Crane v. Reeder (1871), 22 Mich. 322; 36 Cyc 1088; Woodworth v. Kalamazoo (1903), 135 Mich. 233, 97 N. W. 714.”

The last rule above is aptly illustrated by Morris v. State, ex rel. (1884), 96 Ind. 597, and in Walter v. State (1886), 105 Ind. 589, 5 N. E. 735. With these rules of construction before us, and in view of the strong presumption that the legislature did not intend an injustice, we hold that the general law as to fees of justices of the peace, of 1913, does not repeal the special law as to compensation that such officer shall receive for services in insanity inquests. Such general law within itself, by clear implication, justifies the holding, for it provides that in townships having 100,000 population, or more, no fees named in' this section, other than the docket fees, shall be charged or collected, but that in lieu thereof such justices shall each receive $2,000, in full of all compensation, fees and allowances, as mentioned and set forth in this section, thereby by clear implication permitting compensation for the services involved as theretofore provided by law in other sections.

The judgment is reversed, with instruction to the trial court to overrule the demurrer to the complaint, and for further proceedings not inconsistent herewith.