Board of Commissioners v. Davis

22 L.R.A. 515, 36 N.E. 141, 136 Ind. 503, 1894 Ind. LEXIS 165

• Court: Indiana Supreme Court
• Decided: January 11, 1894
• Docket: No. 17,006
• Status: Published

Opinions

Hackney, J.

The appellees, twenty-one in number, proceeding under- the act of the General Assembly, approved March 4th, 1893, Acts 1893, p. 341, petitioned the appellant, representing that the salaries, as provided by law, of the Honorable David N. Taylor, judge of the circuit court of Vigo county, and Honorable Cyrus F. McNutt, judge of the superior court of said county, were inadequate compensation for their services as such judges, and that such salaries should be increased as to each of said judges in the sum of fifteen hundred dollars. The petitioners prayed a hearing, as provided in said act, and that said salaries be so increased.

Such proceedings were had before said appellant that, after hearing evidence, the prayer of the petition was denied.

From this ruling of the board the petitioners appealed to the superior court, where the petition was heard by a special judge, and the prayer thereof was granted.

From the judgment of the Superior Court, this appeal is prosecuted, and several errors are assigned, one of which alleged errors is in the action of said superior court in overruling the motion of the appellant to dismiss said appeal from the action of the board. The alleged reason for-the dismissal of said appeal was that no appeal would lie from the said action of the commissioners.

The character and effect of the action of the commissioners is also presented by the appellee’s motion to dismiss this appeal, and we find it our duty at the threshold of this controversy to determine this question, for upon it depends the jurisdiction of this court. It is manifest that if no appeal could lie from the action of the commissioners the superior court had no jurisdiction, and its proceedings can not be reviewed here.

Where the duty of the commissioners involves judicial action, an appeal lies from its judgment, unless the right of appeal is denied expressly or by necessary implication from the statute creating the duty. Where that duty does not involve judicial action, but consists in the performance of administrative, ministerial, or discretionary powers, no appeal lies from such action, unless it is expressly authorized by statute. Bunnell v. Board, etc., 124 Ind. 1; Farley v. Board, etc., 126 Ind. 468; Platter v. Board, etc., 103 Ind. 360; Waller v. Wood, 101 Ind. 138; Board, etc., v. State, ex rel., 106 Ind. 270; Padgett v. State, 93 Ind. 396; O’Boyle v. Shannon, 80 Ind. 159; Grusenmeyer v. City of Logansport, 76 Ind. 549; Baltimore, etc., R. R. Co. v. Board, etc., 73 Ind. 213; Sims v. Board, etc., 39 Ind. 40; Moffit v. State, ex rel., 40 Ind. 217; Bosley v. Ackelmire, 39 Ind. 536.

To which class the case in hand belongs must be determined from the act of the Legislature, under which these proceedings were had, and to that end we set out the act, which is as follows:

“Section 1. Be it enacted by the General Assembly of the State of Indiana, That the salaries of the judges of the circuit and superior courts of this State shall be twenty-five hundred dollars annually, payable quarterly out of the State treasury: Provided, That in all judicial circuits of this State containing any city which had a population of more than thirty thousand, as shown by the last preceding United States census, whenever twenty or more resident freeholders of the county in which such city is situated shall, by their petition, filed with the board of commissioners of such county, represent that the annual salary of the judge of said circuit or superior court, as otherwise provided by law, is not an adequate compensation for the services of such judge, and should be increased in a sum to be specified in such petition, then it shall be the duty of the board of commissioners of such county, in open session, without delay, and at either a regular or special term of such board, to consider such petition and hear evidence thereon, and thereupon within the limits of such evidence, but in no event in excess of the sum of fifteen hundred dollars, or in excess of the sum specified in such petition, such board of commissioners may, by entry of record, fix and allow a certain sum as an addition to or increase of the annual salary of the judge of such circuit or superior court.

“Sec. 2. Upon such allowance being made by such board of commissioners, the sum so allowed'shall be payable only out of the treasury of the county in which such petition is required to be filed, and shall be payable quarterly upon warrants drawn by the auditor of such county upon the treasurer thereof, and from and after the date of such allowance by such board, the same shall be held as an addition to the annual salary of such judge, as otherwise fixed and provided by law, and shall not be diminished during the term of office of such judge; and any such allowance, and the proceedings of any board of commissioners in relation thereto, if in compliance with the provisions of this act, shall be final and conclusive.”

The third section declares an emergency.

Several features of the act indicate to our minds the intention of the Legislature to commit to the board of commissioners a discretionary power as to the increasing of judges,salaries, and not as conferring a power the exercise of which could be held mandatory.

The language of the act is permissive in that it entrusts to the board a discretion as to the amount to be fixed as representing the increase of salary. The language is that ‘'such board * * may fix and allow a certain sum.” The word may has, in some instances, been construed as the equivalent of the word shall, but in no instance, to which our attention has been called, where it was evident that the act, from other points of view, conferred discretionary powers, nor where it was not evident from the whole act, that the legislative direction was mandatory.

The application of the rule that may is to be interpreted for shall depends on what appears to be the true intent of the statute, and the ordinary meaning of the language must be presumed to be intended, unless it would manifestly defeat the object of the provision. Sedgwick’s Con. Stat. and Const. Law, p. 377; Minor v. Merchants’ Bank, 1 Peters, 44.

It is earnestly contended by counsel for appellees, that the act does not contemplate adversary parties or proceedings in the sense that claims against counties are prosecuted. If it were conceded that this construction is correct, it but argues that the Legislature did not intend to deprive the commissioners of discretion in the matter of granting an increase of salary in any sum.

The legislative grant of power to increase salaries certainly involved the duty of judging of the wisdom and propriety not only of the amount to be added, but as to whether any addition should be made. If this duty was not placed upon the commissioners, it had but one other place to rest, and that was upon the twenty petitioners. We can not bring ourselves to the belief that the Legislature intended to place the authority, with the petitioners of judging conclusively that an increase of salary was proper, and that the only duty or power of the commissionersvwas to adjudge the will of the petitioners, with the incidental right to fix the amount of the additional salary.

Another indication of the legislative intent to bestow a discretionary power upon the commissioners is found in the last clause of the second section in these words: “Any such allowance, and the proceedings of the board of commissioners in relation thereto, if in compliance with the provisions of this act, shall be final and conclusive.”

What shall be final and conclusive? Not only the sum fixed', but the proceedings of the board in relation thereto.

But, it is said, such provision must be held not to imply a discretionary power, but as guarding the proceedings and the result from collateral attack, or from being questioned except by direct proceeding, such as on appeal. To this contention is cited the case of Grusenmeyer v. City of Logansport, supra, and while we observe that the reasoning of the learned and able judge who wrote the opinion in that case would support the contention here, yet such question was not before the court in that case, and, of course, the value of the case as authority depends upon the question decided, and not upon the argument, illustrations, or reasoning of the judge, when not directed to the point in dispute. See State, ex rel., v. Hyde, 129 Ind. 296.

In that case the language of the statute standing in the place of the clause here quoted was that the “order shall be conclusive in all suits by or against such incorporation.” It was there said that such provision “should not be regarded as an implied denial of the right of appeal,” and with the conclusion reached we fully concur. We think it manifest that the expression there employed was designed to protect the incorporation proceedings from collateral attack.

The order was made “conclusive in all suits by or against such incorporation, ’ ’ and it could not be implied that the order of incorporation was one of the suits concluded. The statute under investigation in this case is of a widely different character. The allowance, if any, is “final and conclusive,” and the proceedings in relation thereto, regardless of the function involved, whether judicial, administrative, or ministerial, are “final and conclusive.”

This provision is not confined to other suits, but is sweeping in its effect, so far as the particular proceeding is concerned. None of the forco of this construction is lost by considering the words, “if in compliance with this act,” for the reason that if not in compliance with the act such proceedings would be as vulnerable to collateral attack without such words. Nor could this provision, as to the conclusive character of the proceedings,, have been intended to create an obstruction to such litigation as might reduce the allowance made, since by another provision of the act such a contingency is provided for. It is equally true that the provision was not intended to operate as a former adjudication against granting an increase within the limits of the maximum sum, because the intention of the act is krprovide compensation at any time in proportion to the service performed. To construe the clause as denying the right of appeal and as entrusting the power of fixing salaries, within such limit, leads to the rational conclusion that the Legislature would not deem it necessary or even prudent guard the proceedings against collateral attack when the law is firmly settled and no longer in question that such proceedings could not be the subject of collateral attack,, if conducted according to the provisions of the act.

In view of the now generally accepted doctrine that mere irregularities furnish no ground for collateral attack, and that where jurisdiction exists it will be presumed in all other proceedings to have been properly exercised, we can not agree with the contention that the Legislature ignored this doctrine as existing independent of the act, and then unnecessarily re-established it for the purposes of this special proceeding.

The appellees urge, as we have said, that the statute does not create an adversary proceeding, and this conclusion is obvious.

The petitioners, not parties in immediate interest, invoke the power of the board. The power is not so exercised as to constitute an allowance in favor of any party to the record. A definite sum is not directed to be allowed, but a limitation is placed upon the sum which may be'allowed. The board is the financial agent of the county, its power being supervisory as to the expenditures of the county, as to the levying of taxes and as to provisions to meet the county’s obligations, such is the effect of our form of local government, and the Legislature will be presumed to have acted with reference to this rule unless it is expressly, or by necessary implication, provided that an exception shall exist. The act under consideration does not create an exception to the general rule.

If the obligations and the resources of the county were to form no part of the consideration of the question of increasing salaries, there was no occasion to have delegated the legislative power to the board to fix such salaries.

The statute under consideration confers the power upon the board to bind the county as by contract, and should be strictly construed. Robinson’s County and Township Officers, section 38, and authorities there cited.

Rules of construction applicable to legislation, in which the public at large are interested, require liberality, while, with reference to legislation granting powers or privileges to individuals, for their own advantage, require strict construction as against such individuals. Ryan v. Vanlandingham, 7 Ind. 416 (422); Bradley v. New York, etc., R. R. Co., 21 Conn. *294.

As granting the prayer of the petition without discretion on the part of the board, the act would require liberal construction in favor of the individual rights and strict construction as against the public rights. But it is insisted that the action of the board in the hearing of evidence, as required by the Legislature, is in its nature judicial, and that, therefore, an appeal lies from such action.

While it would appear anomalous to grant the right of appeal to the petitioners, where they fail, and to permit no adversary party — not even the board — with the right of appeal where the petition is granted, yet such is the effect of this contention.

While not denying the power of the Legislature to so enact, we must observe that such unusual and extraordinary purpose should clearly appear, and should not result from a strained construction. But, for the purpose of the question urged, let us concede that the action of the board is judicial in its character, and then, if we are correct in our conclusion that the clause of the second section making its action final and conclusive precludes an appeal, we have the exercise by the Legislature, of a power certainly possessed, whereby the right of appeal is cut off, even in a proceeding judicial in its character. But we do not hold that the hearing so provided involves judicial action.

In Flournoy v. City of Jeffersonville, 17 Ind. 169, it is said: “A judicial act then, must be an act performed by a court, touching the rights of parties, or property, brought before it by voluntary appearance, or by the prior action of ministerial officers.”

This definition has been accepted and followed Ijy this court many times, and under it there would seem to be no judicial action where the parties whose rights are to be affected are not before the court. See Pennington v. Streight, 54 Ind. 376.

In considering the effect of conferring the power to hear and examine, and as to whether such power was necessarily judicial in its character, it was said, in Wilkins v. State, 113 Ind. 514 (518): “If theappellant were correct in his assumption, then every school examiner who examines an applicant for license, every clerk who accepts and acts upon an affidavit, every auditor who accepts an abstract of title when he loans school funds, and every officer who approves a report, would exercise judicial functions. That they do in some degree act judicially is true, and so does every officer, from the governor to constable, who is invested with discretionary powers; for the governor, when he issues a requisition for a fugitive from justice, decides many things; and the constable, when he executes a writ or warrant, exercises a discretion; but no one of these officers exercises judicial judgment in the sense that a court or judge does.” And, it is there further said, in quoting from Flournoy v. City of Jeffersonville, supra: “An act is none the less ministerial because the person performing it may have to satisfy himself that the state of facts exists under which it is his right and duty to perform the act.” See also, State, ex rel., v. Johnson, Aud., 105 Ind. 463.

By sections 2637, 2638, R. S. 1881, the boards of commissioners of the different counties are charged with the duty of directing, by order of record, what classes of animals may run at large and 'pasture upon the uninclosed lands and public commons. The parties interested are not required to appear before the board, and the rights of individuals are affected by a compliance with the duty so charged, but this court held that in the performance of such duty the board acted in their administrative and not in their judicial character. Farley v. Board, etc., supra.

The case nearest in parallel with this question that we have been able to find, is where the county board, by statute, R. S. 1881, section 4993, is constituted a board of health, and is charged with the duty of choosing a secretary and fixing the compensation for his service. The performance of that duty is held to involve no judicial action, but to consist in the exercise of discretionary powers, and that no appeal lies in the absence of special statutory provision. Waller v. Wood, supra.

It is there said: "The amount of compensation is a mere matter of discretion with the board of health, and from a decision made in matters of discretion, no appeal lies. Sims v. Board, etc., 39 Ind. 40; Moffit v. State, ex rel., 40 Ind. 217; Grusenmeyer v. City of Logansport, 76 Ind. 549.”

But, as stated, it is unnecessary to our conclusion that we should find the action of the board not to involve judicial action.

The fixing of the amount of increase in the case before us is, as we have already stated, discretionary. The object of hearing testimony is not to require an allowance, but to enable the board to exercise its discretion with a knowledge of the value of the service of the judges, a knowledge which it could not be presumed the board possessed.

Believing, as we do, that the judiciary of the State is not sufficiently compensated, and that the State is less liberal with her judges than States of like character, we regret that our duty requires us to disagree with the position of the counsel for the appellees, which would secure for two able, diligent, and conscientious judges a better reward for their labors.

Filed Jan. 11, 1894.

As we view the question before us, we are constrained to hold that no appeal lies under the statute under consideration. (

The appeal is therefore dismissed.