174 Ind. 495 | Ind. | 1910
This action was brought by the State to recover the sum oí $3,653.59, alleged to have been retained by appellee out of fees and costs collected by him as Clerk of the Supreme Court, and for which he failed to account to the present clerk of said court, in accordance with the terms of the act of February 26, 1907 (Acts 1907 p. 92), and for the statutory penalty provided for in said act. Appellee’s demurrer to each paragraph of complaint, on the ground that the facts therein alleged were insufficient to constitute a cause of action, was sustained. The State declined to amend and elected to stand upon the sufficiency of its complaint, and final judgment was rendered in favor of appellee.
The sustaining of demurrers to each paragraph of the complaint has been assigned as error.
The first paragraph of complaint alleged the following facts, in substance: In November, 1894, appellee was duly elected Clerk of the Supreme Court, and on November 22 he qualified and entered upon the duties of his office, and continued therein until November 22, 1898, and, by virtue of his office, was during said term also clerk of the Appellate Court. During said term certain causes were appealed to said courts, wherein fees were taxed for costs paid by appellants for the preparation of transcripts of the record in said causes for appeal. Said causes were reversed by said courts, and the fees so taxed were recovered of the appellees and became the property of the appellants in said respective causes. Such fees were legally taxed in each of the cases set out, in both the Supreme and Appellate Courts, to the
The second paragraph of complaint alleges the same facts as the first, and, in addition, alleges that appellee concealed from the State and from the persons entitled to said fees and costs the fact that he had collected and received them. Section five of the act of 1907 (Acts 1907 p. 92, §9391 Burns 1908) upon which this action is founded reads as follows: “The Clerk of the Supreme Court shall tax and charge in favor of the sheriff of the Supreme Court, or in favor of the county sheriffs for their services, as his deputies, the fees and amounts now or hereafter provided by law, which fees and amounts shall not belong to the State of Indiana, but shall be the property of said sheriff and his said deputies, and when collected shall be by said clerk paid over to said sheriff or his said deputies. And such clerk at the expiration of his term shall hand over to his successor in office all of the books, papers, fees, costs, charges and amounts, together with all moneys and other property received by him by virtue of his office, or under color thereof. And any person heretofore elected or appointed clerk of said supreme court, whose term of office as such clerk has expired before the passage of this act, having any such fees in his hands, shall, within sixty days from the taking effect of this act, make a sworn, itemized statement of all such fees and amounts remaining in his hands, by such clerk collected during the term of his office as such clerk, or under color thereof, and to whom due, and file such sworn statement in the office of the Clerk of the Supreme Court of the State of Indiana, and pay all such feas and amounts over to the Clerk of the Supreme Court, and in default thereof, or of any thereof, shall be and become liable to the State for a penalty of twenty-five per cent of such respective amounts so retained by him, and it shall be and become the duty of the Attorney-General to proceed by
It is made the duty of the Clerk of the Supreme Court to tax all fees and costs for which the plaintiff in an appeal shall be liable in said court, and to issue a fee bill or an execution for the collection of such fees and costs. §9617 Burns 1908, §6024 R. S. 1881. These statutory provisions clearly authorized appellee as clerk of the Supreme and Appellate Courts to tax, collect and receive, as such clerk, the fees for which he is sought to be made accountable in this action.
If the statute under consideration was intended to include state officers, it would operate to amend and repeal some of the existing provisions in a manner not apparently reasonable or likely to have been intended. It is hardly conceivable that the legislature would have begun by naming county officers, and wholly have failed to mention any state officer, if it was the purpose to include the higher officers within the provisions of this act, or that a penalty would have been imposed for an offense by a county officer, and none for a like act by a state officer. We cannot ascribe to the clause, “and
It follows that there was no law in force at the expiration of appellee’s term as Clerk of the Supreme Court requiring him to account for and pay over moneys in his hands to his successor in that office.
The propriety and good policy of the provisions of the present statute requiring clerks to account to their successors for all moneys received under color of their office are beyond question, and their validity is beyond doubt, so far as they are prospective in operation. The clerk of this court is a constitutional officer and his term of office is limited to four years. If official duties of the character prescribed may be imposed on appellee after he has been out of office nine years, such legislation would seem to be without limitation either in substance or time of enactment, and an ex-offieer could never know when his official accountability to the State would end. The State had no right, title or- interest in or to the moneys involved after the expiration of appellee’s term as clerk, or power thereafter to exact official duties of him pertaining to
Judgment affirmed.