160 Ind. 605 | Ind. | 1903
Lead Opinion
The board d*£ commissioners of the county of DeKalb instituted this action to recover of appellant $78, which amount he had previously received from the treasury of that county in payment of services rendered by him as a member" of the county board of review. Appellee sue
The complaint is in two paragraphs. The first charges that appellant was the duly elected and qualified auditor of DeKalb county, Indiana, and as such auditor he, by virtue of his office, served as a member of the board of review of said county in the year of 1899; that for such services he was allowed and received the money in question from the treasury of that county; that under the law he was chargeable with the duty of having the amount credited to the county officers’ fund, but in violation of this duty he drew the money from the said treasury as due to him for his services upon said board, and thereafter unlawfully appropriated and converted the same to his own use, etc. The second paragraph alleges generally that the defendant is indebted to the plaintiff in the sum of $78 for money received by him for the use of said plaintiff.
The undisputed facts, as established by the evidence, show' that appellant was the duly elected and qualified auditor of DeKalb county, Indiana, and while the incumbent of that office, during the year 1899, he served for a period of twenty-six days as a member of the board of review of that' county. Prior to his entering upon the discharge of his duties as such member he took and subscribed the oath provided by the statute. After performing the duties as a member of said board for the time mentioned he presented a- claim for the amount due him for his said services to the board of commissioners of said county. This claim the board duly allowed, and directed that an order for the amount thereof, to wit, $78, be drawn upon the county treasurer in favor of appellant. This warrant' was accordingly drawn and presented by him to the county treasurer, and paid out of the funds of the county. He received the
The sole question involved is whether appellee is entitled to the money which it seeks, under the facts, to recover of appellant. The contentions of the latter’s counsel are: (1) That in serving as a member of the board of review he was acting independently of the office of auditor, and was not discharging the duties as a member of the board by virtue of his holding said office, consequently, the contention is, that the fee and salary law of 1895, in respect to the fees and salaries of county officers, does not apply to or control the question involved; (2) if it can be said that appellant, while serving as a member of the board of review, was in discharge of duties imposed upon him as auditor, then under this view the above salary statute of 1895 can not be construed so as to require him to turn back into the county treasury the per diem compensation which he received for acting as a member of the board of review.
The contentions of appellee’s counsel are: (1) That the statute under which appellant was allowed and received the money in controversy does not intend to award any compensation to any of the members of the county board of review, except the two freeholders appointed by the judge of the circuit court as authorized by the act of 1895 amending the tax statute of 1891; (2) that appellant, in serving as a member of the board, was only discharging duties imposed upon him as auditor; therefore the per diem allowance for serving thereon must be considered as a fee, which, under the requirements of §§21, 116 and 136, of the act of 1895, (Acts 1895, p. 319, §§6426, 6522, 6540 Bums 1901), should be turned back into the county treasury as a part of the county officers’ fund.
While much may be said in support of the first contention of appellant, to the effect that while he was serving as
Section 114 of the tax statute of 1891 (Acts 1891, p. 199) provided that: “There shall be an annual board for the review of all assessments and the equalization of the valuation of real and personal property in each county. Such board shall be composed of the county assessor, county auditor and county treasurer. The county assessor shall be president, and the county auditor secretary of said board, which shall be known as the ‘County Board of Review’.” This section conferred numerous powers upon the board, and exacted of it the performance of numerous duties. The statute provided that before entering upon the discharge of their duties, each member should take and subscribe an oath for the faithful and impartial discharge of his duties as a member of said board. This oath required each member to be sworn to support the federal and the state Constitutions, and faithfully and impartially to discharge his duty as a member of the board of review, and that he would, according to the best of his knowledge and judgment, assess, review, and equalize the assessments of the property of the county, etc. Appeals were allowed from the decisions of the board to the state board of tax commissioners.
The legislature at its session of 1895 (Acts 1895, p. 14, §8532 Burns 1901) amended §114 of the-aforesaid tax law, and by such amendment the following provision, which we have embraced in italics, was added to the section: “Such board shall be composed of the county assessor, county auditor and county treasurer, and two freeholders to he appointed hy the judge of the circuit court, who shall each
Under the provisions of the tax law creating the board, three members thereof constitute a quorum for the transaction of business; and it is authorized, when necessary, to sit for twenty days in each year, and in the year when real estate is required to be appraised it may sit for a period of thirty days. The place fixed by the statute for the board to hold its sessions is at the court-house, in the room of the county commissioners. During its sessions the county auditor not only serves as a member thereof, but is also designated by the statute to serve as its secretary. It is claimed that in the discharge of these duties, under the circumstances, he must necessarily be absent from the auditor’s office, which, under §7971 Burns 1901, is required to be kept open at all times during business hours. While performing the services enjoined upon the auditor as a member and secretary of the board of review, he must also discharge his duty to the public by keeping the office of auditor open •for the transaction of the business thereof. It is insisted that this latter duty, if performed during the sessions of
We may next inquire if the provisions of the fee and salary law of 1895 have so changed or modified thé statute awarding the per diem as to require the auditor, after he has received the amount thereof, to report it and turn the money back into the treasury as belonging to the county, to be credited to the auditor’s cost or fund. A solution of this question depends upon an interpretation of the several provisions of that statute, especially §116, which it is claimed controls the question in favor of appellee. The act is entitled: “An act fixing the compensation and prescribing the duties of certain State and county officers, fixing certain fees to be taxed in the offices and the salaries of officers therein named,” etc. Acts 1895, p. 319, §6426 et seq. Burns 1901. It will be observed that this statute was passed by the same legislature about ten days after that body had enacted the amendment to the tax statute by which the per diem compensation was awarded to the members of the county board of review. The contention, therefore, is that, by reason of the fact that the fee and salary law is the later in course of time, the provisions thereof must be construed and held as having changed and modified the provisions of the amendment to the tax statute so as to require the auditor to tax and charge the per diem allowance provided and awarded him for serving as a member of the board as a fee in favor of the county to be credited to the auditor’s costs as provided by §115 of the salary act, and when the same is received by him from the county treasurer, he is, under the provisions of said statute, required to pay the
Section 115, supra, requires county auditors to tax and charge upon proper books the fees and amounts. provided by law on account of services performed by said officers, and “The fees and amounts so taxed shall be designated ‘auditor’s costs,’ but they shall in no sense belong to, or be the property of the auditor, but shall belong to and be the property of the county. They shall tax and charge: For copies of all records, for each 100 words, ten cents: For writing affidavits and swearing affiant thereto, twenty-five cents.” The further enumeration of services to be performed by the auditors, together with the fees to be charged for the same is continued in this section.
Section 116 reads as follows: “Where the auditor is required by law to perform any service not specially mentioned- in this act, for which services the auditor shall be entitled under the law existing before the taking effect of this act, to tax, charge or receive any fee or compensation in his own favor for such service, he shall hereafter tax the amount on account of such service in favor of the county, and the same shall be collected and paid into the county treasury as elsewhere provided in this act.”
Section 124 requires the county auditor, together with other officers therein mentioned, to make a quarterly sworn report on the days therein designated specifically showing the amount of fees collected during the preceding three months, and to pay the amount shown by such report to the county treasurer, and take the latter’s receipt for the
Section 131 makes it the duty of the auditor, within sixty days from the time any costs are taxed or charged in his office for services performed by him or by the. sheriff, to issue fee bills for the same to the sheriff of the county for the collection thereof.
Section 136 declares that the act shall not be so construed as to allow the officers therein named the salaries therein provided, and also the fees required to be taxed, “except as otherwise specified.”
Section 138 declares that all laws in conflict with the act are repealed to the extent of such conflict.
All of the provisions of the act in question must be construed together, and harmonized with each other, so far as possible. Sections 21 and 136, when so construed, emphasize and make clear the point that the respective officers named in the act shall not, in addition to their annual salary as fixed, be allowed the fees which are required to be taxed by them for official services performed, as provided under said act; or, in other words, the employment of any constructive method which will result in awarding to the officer such fees as his own, which he is required to tax and charge, is expressly prohibited, except as may be otherwise specified.
Section 138 shows that it was the purpose of the legislature to repeal all other laws in conflict with the provisions of the act, only to the extent of such conflict.
It is certainly evident that the provisions of the statute which fix and allow a per diem to remunerate the members of the board of review for serving thereon authorize each thereof, when his claim for such services has been audited by the board of commissioners, to draw the money from the
It is especially insisted that by virtue of §116, supra, the law allowing the per diem to appellant for his services in question is so modified or changed as to deny him the right to retain it as his own after he has legally received it in the first instance. This section, it will be observed, declares that where the auditor is required by law to perform any service not specially mentioned in the law of which it forms a part, for which services he “shall be entitled under the law existing before the taking effect of this act, to tax, charge or receive any fee or compensation in his own favor for such service, he shall hereafter tax the amount on account of such service in favor of the county, and the same shall he collected and paid into the county treasury as elsewhere provided in this act.” (Our italics.)
The only provision of the salary law in question to which the clause “as elsewhere provided in this act” can be said to refer is §124, supra, in which, as we have seen, the audit- or is required to make quarterly reports of the amount of fees collected by him, and pay the same over to the county treasurer. Consequently, under the circumstances, §116 may be treated or construed in the light of or in connection with §124. We may note in our efforts to discover the legislative intent or purpose in making §116 a part of the act of 1895, the fact that it is but a reenactment,letter for letter, of §117 of the fee and salary law of 1891 (Acts 1891, p. 424), from which, with some exceptions, the act of 1895 is apparently framed. The section in controversy was manifestly incorporated into the salary statute of 1891 for the purpose of exacting of auditors affected by that act the duty of thereafter taxing in favor of the county all compensatory fees for services performed by them for persons under laws existing after the taking effect of said salary act. Such fees no longer were to be taxed in favor of the auditors, but were to be taxed in favor of the county, and when collected the amount
By the plain and express language of §124, which, as previously said, is manifestly the provision referred to and intended by §116 under the clause therein, “as elsewhere provided in this act,” it is declared to be the duty of the auditor to report and pay over to the county treasury, to become a part of the “auditor’s fund, the amount of fees collected during the preceding quarter.’ We must assume that the legislature advisedly and understandingly employed the words “tax” and “fee” or “fees” in their usual sense, or in accordance with the appropriate and legal meaning of these terms; hence, in the interpretation thereof, we must be guided by and observe the rule to which we have hereinbefore referred. The word “tax,” as a verb, when used in respect to fees or costs, is defined to mean “To as
When the auditor has taxed and charged the fees upon the books of his office as prescribed by §115 of the salary act, he may be said to have assessed and determined the amount of the fees allowed by law in the particular matter in which he has rendered official services. For example, “For copies of all records, for each 100 words,\ten cents.” “For transferring from land description to lot, each lot five cents.” The amount of such fees, among others enumerated in that section, when collected by fee bill or otherwise, must be reported and paid over to the county treasurer as exacted by §124. This latter section does not profess to require him to report and pay over to the county treasurer money accruing otherwise than from the fees of his office. The word “fee,” as used in the statute, had at the time of the passage thereof a well defined meaning and import; and to this we must adhere, under the rule previously asserted, unless by so doing the intent of the legislature will be defeated. It, in reason, can. not' be said that the word “fee” or “fees,” as employed in the act in controversy, should be accorded a broader or different meaning than is usually given the term in statutes of a similar character or import as the one in question, so as to require a court to hold that the legislature intended the per diem compensation in dispute to be regarded as a fee to be taxed and charged as such in favor of the county, and thereafter the amount be turned back into the county treasury from which it'was received.
Let us examine and ascertain from a proper source what the legislature meant by the use of the term in question. In Cowdin v. Huff, 10 Ind. 83, the salary of a judge of the common pleas court was involved. This court in that appeal, in determining the meaning and import of the terms
An allowance fixed by law at a definite amount per day, to compensate a person for discharging public duties, certainly can not be regarded as a fee, within the accepted meaning of that term, but falls more properly within the definition of the term wages. As well might the per diem allowance fixed by law to remunerate grand and petit jurors for the services performed by them, or the per diem allowed to county superintendents of schools for their services, be considered as fees, as to regard as a fee the per diem compensation allowed by the statute to members of the county board of review. In the cases of Board, etc., v. Johnson, 64 Ill. 149, and Board, etc., v. Christianer, 68 Ill.
In §21, by which, as previously stated, the legislation in regard to the compensation of county officers is introduced, it will he observed that the term “compensation” is employed three times. It is obvious that the legislature in the first two instances, in using the expression, meant and intended to refer to the annual salaries of the officers in each of the respective counties of the State, for by the express language of the section the compensation meant is disclosed to be that which “is graded in proportion to the population and the necessary services required in each of said several counties.” No compensation under the act, other than the annual salary of the officer, is attempted to be graded according to the particular standard declared in the section. That it is the annual salary which is intended by the term in question is further manifested by the fact that immediately thereafter follows a list of all of the counties of the State in which the annual salary of each respective officer mentioned is specified or fixed. Eor example: “In the county of DeKalb the annual salary * * * of the auditor $2,500.” When the clause therein which declares “and they shall receive ho other compensation whatever” is construed along with other provisions, especially §136' it becomes evident that the officers are to receive no other compensation by the way of fees or salary in addition to the annual salary fixed by the act, “except as otherwise specified,” as is declared hy §136. To accord t'o the clause in question, standing alone, its literal meaning, and construe it as denying, in effect, the right of the officer, outside of his annual salary, — to be allowed for his own use no other compensation upon any event or under any or all circumstances,
We may again repeat that it is evident from an examination of §136, and other parts of the act, that what the legislature intended most emphatically to deny was the right of the county officer to receive, in addition to his salary, the fees required under the law to be taxed and charged and paid into the county treasury. The annual salary of the auditor is not made to depend upon the amount of fees collected and paid into the treasury by that' official. §6532 Burns 1901. Hence, under the circumstances, there is no force in the contention that the legislature intended that the per diem allowance for serving on the board of review should he regarded as a fee to be paid over, when received, to the county, in order to aid in making up the auditor’s annual salary, for the latter is required to be paid in full out of any money in the county treasury not otherwise appropriated. The statute, under its terms, does not pretend or profess to award to the members of the board of review the per diem therein provided for any particular act or items of service performed, but it is to compensate them
We conclude that appellant is entitled to the money involved in this action, and therefore the court erred in overruling the demurrer to the first paragraph of the complaint, and in finding in favor of appellee upon the facts.
The judgment is reversed, and the cause remanded to the lower court.
All concur, except Monks and Dowling, JJ., who dissent.
Rehearing
On Petition foe Rehearing.
Counsel in addition to those who represented appellee at the former hearing have intervened, and, in behalf of appellee petitioned for a rehearing. They contend that according to the grammatical construction the per diem awarded by the amendatory act of 1895 (Acts 1895, p. 74) to the members of the county board'of review must be limited to the two freeholders appointed by the judge of the circuit court. The argument is advanced that the relative clause “who shall each be paid,” etc., refers and applies solely to the two freeholders, and consequently they alone, to the exclusion of the other members of the board, are entitled to receive for their services the compensation prescribed by the statute. This contention can not prevail, unless resort be had to a strained construction of the law. In support of the grammatical interpretation or construction for which counsel contend we are referred to Fowler’s English Grammar, 570, where the author says: “Where there are two words in a clause each capable of being an antecedent, the relative refers to the latter.” This grammatical rule as above asserted is not an unvarying one under all circumstances and the application thereof is frequently controlled by punctuation disclosing a different intent. In 23 Am. & Eng. Ency. Law, 369, it is said: “In
In the appeal of Fisher v. Connard, 100 Pa. St. 63, the words of the statute there involved were: “Taxes, charges, assessments, and municipal claims, whose lien,” etc. The relative was separated from the series of nouns preceding it by a comma. The contention in that case was that the relative, “whose lien,” applied and referred alone to the last antecedent, “municipal claims.” This contention the court denied, saying: “Our best judgment is that Taxes, charges, assessments and municipal claims’ in the act of 1861, were all intended as antecedents of the word Tien,’ and if this makes good law, the grammatical construction is not so important.”
While it may be said that the grammatical construction of a statute is one of the methods of interpretation, still it is not always the true mode, and must yield to the manifest intention of the legislature, as the grammatical sense and structure of the sentences, and propriety of language therein employed, will not be adhered to if inconsistent with the declared purpose, or if to do so would render the law inconsistent or absurd. State v. Myers, 146 Ind. 36, 23 Am. & Eng. Ency. Law, 368.
It appears that the statute in question declares that “Such board shall be composed of the county assessor, county auditor and county treasurer, and two freeholders to be appointed by the judge of the circuit court, who shall each be paid,” etc. It will be observed that the relative pronoun
The grammatical rule that when a relative pronoun follows it's antecedent, and is used in a restrictive sense, the comma should not precede it, is well settled. Vide Brown’s Grammar of English Grammars, 229; Complete English Grammar (Ind. Series), 194; Lockwood’s Lessons in English, 225. In Hill’s Elements of Rhetoric and Composition, page 107, it is said: “A relative pronoun with several antecedents should be preceded by a comma.” In Lockwood’s Lessons in English, the author says: “If the relative pronoun refers to each of a series of nouns it should be separated from the series by a comma.” Reading the provision in controversy in the light of these well established principles, and it is manifest that the word “who” was not intended by the draftsman of the act, nor by the legislature in the enactment thereof, to be limited or restricted alone to the noun “freeholders,” as its antecedent, but was intended to refer to each of the series of nouns preceding it, namely, county assessor, county auditor, county
Had the legislature intended to limit to the two freeholders the compensation provided, it would, no doubt, have found apt and appropriate language to disclose its intention in that respect, as was done in the act of 1881, wherein it was declared that the county board of equalization should be composed of the board of commissioners and fohr freeholders, to be appointed by the judge of the circuit court. The positive language used in that act to limit or confine to the freeholders the per diem prescribed was: “And the said freeholders shall receive as a compensation for their services the sum of $2.50 each per day,” etc. At the time of the last-mentioned statute the members of the board of commissioners, under a then existing law, were members of the county board of equalization, and their compensation for serving thereon was fixed at $3.50 per day. §5823 R. S. 1881. The fact that the compensation of the board of commissioners for serving on the board of equalization had already been fixed and prescribed at $3.50 per day by the fee and salary act then in force, fully accounts for and explains the reason of the legislature in limiting to the freeholders the compensation of $2.50 per day, as prescribed in the said act of 1881.
In closing their argument upon the petition, counsel admit that if the statute in question, when properly construed, can not be said to award the per diem not only to the freeholders, but also to the auditor, treasurer, and assessor, “then they are entitled to receive it; otherwise not.” This may be said to be virtually a concession on the part of counsel and there is no merit in the proposition advanced and urged for consideration by appellee at the previous hearing, to the effect that if the provisions of §114 of the tax law of 1891 (Acts 1891, p. 199), as amended by the act of 1895 (Acts 1895, p. 74), entitled appellant to receive the per diem therein provided, then by virtue of §116 of the salary act' of 1895, a later statute, he was required to return it to the county treasury. The insistence being that §114 was so modified and changed by virtue of §116 of the fee and salary law of 1895 that appellant was not entitled to receive and hold the per diem as his own.
In conclusion we may mention the fact that since the original opinion in this appeal was handed down on January 9th of the present year, placing the construction which we did on the provisions of §114 of the tax law in controversy, the legislature, by an' act approved February
The construction of the statute having at least impliedly received the sanction and approbation of the legislative department, we, for this reason in addition to others, are satisfied with the result reached at the former hearing. The petition is therefore overruled.
Dissenting Opinion
Dissenting Opinion.
I find myself unable to agree with the majority of the court in this case, and, in view of the importance of the issue presented, I will briefly state the reasons forfiny dissent from the prevailing opinion.
Two questions arise upon the record: (1) Did the act of March 1, 1895, (Acts 1895, p. 74) entitle the county auditor to special compensation for his services as a member of the board of review; and (2) if so, did the act of March 11, 1895 (Acts 1895, p. 319) deprive him of it, and require him to pay it into the county treasury ? After a careful examination of the subject, I have reached the conclusion that the auditor was not entitled to a per diem allowance for his services as a member of the board of review, and that, even if he had been, his right to receive it was taken away by the later statute. Stated more briefly,
Whatever may be the rule in other states, or in other jurisdictions, this court is committed to the principle of the strict construction of statutes regulating the fees, salaries, and compensation of public officers. To entitle the officer to any fee, salary, or compensation, he must be able to put his finger upon the statute allowing it to him. Doubts are to be resolved in favor of the public and against the officer. Constructive services and constructive fees are unknown to the law of this State, and double compensation for official services is not to be tolerated.
It was said by Mitchell, J., in Board, etc., v. Gresham, 101 Ind. 53: “There can be no such thing in legal contemplation as an implied assumpsit on the part of a county with respect to the sfervices of county officers. In performing services for the county, the officer and the county stand related to each other precisely as an individual and the officer, the statute regulating fees being the measure of compensation for the one, and the extent of the liability of the other in each case. For services imposed by law upon the officer, which are not specially rendered for the municipality, as a prerequisite to the liability of the county' for said service, the officer must show: (1) A statute fixing the compensation for the service. (2) A law authorizing or making the county liable to pay for such services out of its treasury. It is of the highest concern to the public that this should be so; otherwise it would be within the power of one body of county officials to compensate the other county officers out of the public treasury, as a matter of grace and favor,
In Noble v. Board, etc., 101 Ind. 127, this court again de-" dared that “It was decided as early as Rawley v. Board, etc., 2 Blackf. 355, and it has been the law ever since, that a county can not be liable for the fees and charges of officers without an express statute on the subject.”
Again, in Board, etc., v. Johnson, 127 Ind. 238, this court said: “It is well settled that a county auditor can recover only such compensation as the statute allows him, and that he is not entitled to recover compensation for duties performed by him, except where the statute so provides, although the services may be regarded by him and by the board of commissioners as ‘extra services’ entitling him to ‘extra’ compensation. We have so often discussed this general question that we decline to again discuss it. * * * Eor many years the General Assembly has clearly and unequivocally declared its policy to be that no constructive fees shall be allowed upon any pretext to county officers, and this court has uniformly given full effect to that policy.”
In determining the question presented by the record in this case, the decisions'of the courts of other states are entitled to no weight, unless made under statutes similar to our own. McFarlan v. State, 149 Ind. 149.
In this State, no person can hold more than one lucrative office at the same time, except as the Constitution expressly permits. Const., Art. 2, §9.
Guided by these rules, it would not seem to be a difficult task to decide the question whether the appellant, as auditor of DeKalb county, was entitled to $3 per day while acting as a member of the board of review, in addition to the salary of $2,500 per year allowed him as such auditor.
Resorting to previous acts of the legislature, as we have the right to do for the purpose of ascertaining the meaning of the present statute, we find that the revised statutes of 1881 made the board of commissioners of each county and four freeholders the county board of equalization. The duties of this board were similar to those now performed by the board of review. The law provided that the freeholders on the board should receive the sum of $2.50.per day for their services while actually employed; but no compensation was given to the members of the board of commissioners beyond the allowance made to them by law as such commissioners. §6391 R. S. 1881.
Again, while the board of review, as created by the act of March 6, 1891, was composed of the county assessor, county auditor, and county treasurer, alone, and its duties were precisely those prescribed for the board of review by the act of March 1, 1895, no compensation whatever beyond their salaries was given to the three officers constituting the board. Not until “two freeholders” were added to the board by the act of March 1, 1895, was any special-compensation for any of the members of the board mentioned. As these freeholders were not public officers under salary, they
The legislature had the right to impose upon the assessor, auditor, and treasurer new and additional duties, and to require these officers to perform them without compensation other than the salaries already allowed. Gilbert v. Board, etc., 8 Blackf. 81; Board, etc., v. Blake, 21 Ind. 32; Board, etc., v. Johnson, 31 Ind. 463 ; Turpen v. Board, etc., 7 Ind. 172; Noble v. Board, etc., 101 Ind. 127; Sudbury v. Board, etc., 157 Ind. 446.
County officers are in many cases required by statute to perform services unconnected with their usual official duties. The technical designation of the county clerk is “the clerk of the circuit court.” Const., Art. 6, §2. But in certain contingencies he must call special sessions of the board of commissioners. §7822 Burns 1901. He acts as clerk of the board of canva'ssers of elections. '§6271, supra. The clerk, auditor, and recorder are made the trustees for the county library. §4965, supra. The clerk, sheriff, and auditor may, under some circumstances, appoint a special judge of the circuit court. §§1444, 1447, supra. The county auditor may participate in the election by the township trustees of the county superintendent, and give the casting vote in case of a tie. §5900, supra. The auditor must act as the clerk of the board of commissioners. §7825, supra. Yet in none of these cases is special compensation made to any of these officers, and in all of them the officer acts in his official character as clerluof the circuit court, sheriff, recorder, or as county auditor. The duty is made an in
Referring once more to the words of the act of March 1, '1895, creating the hoard of review, it will be observed that the assessor, auditor, and treasurer are not appointed or elected members of that body by the executive^ by the legislature, hy the judge of the circuit court, or other public officer, or by the electors of the county. Section 114 provides that the two freeholders shall be appointed by the judge of the circuit court. The three county officers are brought into the hoard and subjected to the provisions of the act by the words: “Such board shall be composed of the county assessor, county auditor and county treasurer, and two freeholders to be appointed by the judge of the circuit court,” etc. None of the duties prescribed by §114 of the act of 1895 was inconsistent with, or essentially different from, the duties required by existing statutes to be performed by the three county officers who were made ex officio members of the board of review. Each of them was directly connected with the general revenue system of the county and State. By virtue of his office, each possessed special facilities for the discharge of those public duties which were committed to the board of review. They were the only persons having official knowledge of the subjects to be considered by such board. Elad that board been composed of persons other than the assessor, auditor, and treasurer, it could have done nothing without the attendance of these public officers, and the exhibition and explanation by them of the books, papers, and records of their offices. Such attendance could certainly have been exacted as a part of the duty of these officers under the acts in force in 1891 and 1895.
2. If the act of March 1, 1895, gave to the auditor the special compensation of $3 per day while acting as a member of the board of review, that compensation was taken
Even if the construction I have placed upon §114 of the act of March 1, 1895, is erroneous, and if the auditor, under the act of March 1, 1895, was entitled to receive as compensation for services as a member of the board of review the sum of $3 per day while acting as such member, then the case falls precisely within the terms of §116 of the fee and salary law of March 11, 1895. By the act of March 1, 1895, amending the act creating the board of review, the county auditor was required to perform services not specially mentioned in the fee and salary act of March
Section 21 of the act of March 11, 1895, deelax’es that the county officers named therein, — and the county auditor is one of them, — -“shall be entitled to receive for their services the compensation specified in this act * * * and they shall receive no other coxnpensation whatever. Section 38 of the act provides that the auditor of DeKalb county shall have an annual salary of $2,500. Section 138 repeals all laws and parts of laws in conflict with the act of March 11, 1895, to the extent of such conflict. The act of March 1, 1895, if it gave to the auditor any compensation for special services not mentioned in the fee and salary act, and thereby conflicted with the later act, was, to that extent, repealed.
The act of March 11, 1895, applies not only to the services, fees, salary, and compensation mentioned in it, but it is expressly extended to “any services not specially mentioned in this act, for which services the auditor shall be entitled under the law existing before the taking effect of this act, to tax, charge or x-eceive any fee or compensation.” Language could not be plainer. The evident intention of the legislature was to make the salary of $2,500, allowed the auditor of DeKalb county, the only compensation to which he should be entitled for any and every kind of official service performed by him. This interpretation of these
No detriment to the public interests could result from the performance of the additional duties imposed upon the county auditor as a member of the board of review, for the reason that, if that service required his absence from his office, all his other duties as auditor could be discharged by a deputy.
If an attempt is made to justify the allowance of the per diem to the auditor on the ground that membership of the board of review constitutes a separate office, then it may be suggested that the provisions of the Constitution forbid the auditor from holding two lucrative offices at the same time. Const., Art. 2, §9; State, ex rel., v. Kirk, 44 Ind. 401, 15 Am. Rep. 239; Chambers v. State, ex rel., 127 Ind. 365, 11 L. R. A. 613.
Without pursuing this subject further, I think it clearly appears that the appellant was not entitled to the $3 per diem claimed by him, and that the judgment of the DeKalb circuit court should be affirmed.
Monks, J., concurs in dissenting opinion.
