125 Ind. 270 | Ind. | 1890
— The controlling questions in this case arise on the special finding of facts and the conclusions of law, and the decision of those questions determines the controversy so far as this case is concerned, so that it is unnecessary to state or discuss in detail the rulings of the trial court. The facts as they appear in the special finding are substantially these: George Ross was in the discharge of the duties of his office as treasurer of Madison county, on the 15th day of August, 1885, having qualified and given bond as required by law prior to that time. On that day, John E. Canady was the auditor of that county, and Wood, the appellant, was the prosecuting attorney of the circuit of which Madison county forms a part. On the day mentioned, Nathan T. Call, who had been elected as the successor of Ross, and who had qualified, was inducted into office. At that time there was .in the hands of Ross, as treasurer, the sum of $45,883.69 which it was his duty to
The conclusions of law stated by the court read thus: “ 1st. The plaintiff is entitled to recover five per cent, on the sum of $9,028.68, with interest. 2d. No other moneys collected on said judgment have been covered into the corporate treasury of Madison county and the plaintiff is not entitled to recover anything from such collection.”
Both parties excepted to the conclusions of law, and in this court errors are assigned by the appellant and cross-errors by the appellee. The appellant claims to be entitled
The theory of the trial court was that the appellant was only entitled to a percentage upon the amount belonging to the county general fund, and that he was not entitled to any compensation for the money belonging to other funds, as the gravel road fund, the school fund, bridge fund, or the like.
It is quite well settled by our decisions that an officer is entitled to such fees, and such fees only, as the statute provides. If he is unable to show a statute providing the fees he claims, or to show himself within the statute, he will fail. Board, etc., v. Barnes, 123 Ind. 403; Wright v. Board, etc., 98 Ind. 88, and cases cited ; Noble v. Board, etc., 101 Ind. 127; Board, etc., v. Gresham, 101 Ind. 53; Board, etc., v. Harman, 101 Ind. 551. It is incumbent upon the appellant, therefore, to produce a statute giving him the compensation he claims, and to make it affirmatively appear that his case is within the provisions of the statute.
The statute to which the appellant refers us as sustaining his claim reads thus : “ The county treasurer shall pay over all the revenues collected for county, road, and other purposes, and make settlements therefor, at the times and in the manner by this act required; and upon failure or refusal to do so, he and his sureties on his official bond shall be held liable to pay the full amount which he should have paid over, together with interest and ten per centum damages. Such suit, if for State revenue, shall be brought by the attorney general, in the name of the State of Indiana, on the relation of the auditor of state, upon the written request of the auditor of state; and if for county, road, or for any other purpose, it shall be brought by the prosecuting attorney, in the name of the State of Indiana, on the relation of the county auditor, upon the written request of the county auditor, or upon the order of the board of county commissioners. And in case of recovery upon such bond, such attorney general or such prosecuting attorney shall be enti
The appellee asserts that the statute quoted does not apply to this case, because, as counsel argue, the default did not occur while Ross was in office, but occurred after the ■close of his term. This contention can not prevail. The statute will not bear the construction counsel place upon it. There was a default, it was that of a treasurer, and a right of action accrued, so that the statute fully applies. If the construction for which appellee contends should be adopted, it would follow that no action would lie where the default is that of an outgoing treasurer, and consists in failing to pay over the public money to his successor. Such a result, it is very clear, was never contemplated by the Legislature. The case of Board, etc., v. Templer, 34 Ind. 322, does not affect the phase of the question we are now considering, for, when that decision was made, there was no statute in existence resembling the one under immediate discussion.
¥e have no difficulty with the question as to the right of the prosecuting attorney to some compensation under the statute we have quoted, but we have had serious difficulty in solving the question as to the amount of the compensation the Legislature intended to provide. It may possibly be true that the statutory provision quoted, if considered without reference to other statutes, and entirely isolated from them, would have to be construed as giving the prosecuting attorney a percentage upon the entire amount recovered, except as to the amount due the State, and for which the statute seems to require the attorney general to sue; but the statute can not be so considered, for it must be treated as forming a part of one great system of law. We know that other statutes have been enacted upon the general subject,
Judgment affirmed.