78 Ind. App. 211 | Ind. Ct. App. | 1922
— Action by appellant, who was county superintendent of Sullivan county, Indiana, for additional salary as provided by the laws of the general assembly of 1919, Acts 1919 p. 445.
The only error assigned is the action of the court in sustaining appellee’s demurrer to the complaint, which was in two paragraphs. The question presented by the demurrer is as to whether or not the board of commissioners must affirmatively make and enter an order allowing the county superintendent of schools an additional salary of a stated sum before he is entitled to have a monthly allowance made to him by the commissioners. It is the- contention of the appellant that all he is required to do is to file a claim for his monthly allowance, provided the proper petition has been filed with the county commissioners, of freeholders of the county, and also a proper petition by the townsnip trustees of the county designating the amount of additional jsalary the county superintendent should be allowed. It
It' is provided by the act referred to, that upon the filing of the proper petitions the board of county commissioners may allow, in addition to the superintendent’s salary, any such amount as a majority of the petitioning trustees, the conditions of the county and the work required may justify not exceeding $1,000 to be paid in monthly installments out of the county treasury. The act further provides that the county council shall make the appropriation and the board of commissioners shall allow the funds necessary to make such payments.
It will be observed that, while it is the duty of the board of commissioners to act, the decision as to whether there should be allowed any increase of salary is discretionary with the board. If, in the exercise of the board’s discretion, it allows an increase of salary, then the statute is mandatory that the funds necessary to make the payments shall be appropriated, and allowed monthly ^
It is clear that as a prerequisite to the mandate of the statute there must first be an order increasing the salary. The case of Board, etc. v. State, ex rel. (1920), 189 Ind. 540, 128 N. E. 596, substantially decides the question here involved, and the court in construing the same statute says: “The wording of the statute clearly indicates that, when an order is made granting an additional allowance under the provisions of the act, it shall