Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

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of commissioners to cause it to be paid out of the county
treasury. This is done by an allowance upon which the au-
ditor draws his warrant upon the treasurer. This is the
usual mode, and the statute does not change it. If, then, the
amount of the appellee's compensation as such officer was
determined by the board of health, and the al- ^^owamcb by
lowance was made for the sum thus fixed, the ^ommmsiokbrs.
board of commissioners did have authority to make the
allowance. The contrary does not appear ; and as this court
will indulge every reasonable presumption in favor of the
ruling of the circuit court, it will indulge the presumption
that the board of health had determined the amount of such
compensation, and that the allowance was made by the board
of commissioners in payment of the same. Kissell v. Ander-
son, 73 Ind. 485; Coulter z/. Coulter, 81 Ind. 542; Peck z/.
Board, etc., 87 Ind. 221.

This much has been said upon the assumption that the
county commissioners must determine the amount of such
compensation while acting strictly as the board of health.
This, however, is probably not required. The commission-
ers constitute the county board of health, and it would seem
that an allowance by them to the secretary of such board was
of itself a determination of the amount of such compensation
within the meaning of the statute, and that such determina-
tion need not precede the allowance nor be made by them
while formally acting as the county board of health. A sub-
stantial compliance is all that is required.

The statute creating boards of health makes no provision
for an appeal, and we think, by implication, denies
an appeal from an order awarding the "health boabd^ophSlh
officer" compensation for his services. 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 ; Moffitt v.
State, ^j: r^/., 40 Ind. 217; Grusenmeyer v. City of Logans-
port, 76 Ind. 549.

An appeal cannot be taken without depriving the board
of health of the right to determine the amount of compensa-
tion to which its secretary is entitled, and, therefore, the



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234 SMITH V, STROTHER.

statute, by investing the board with such right, impliedly
denies an appeal. The appeal in this case was, therefore,
properly dismissed. This conclusion is in entire harmony
with the doctrine that an appeal lies in all cases where it is
not expressly or impliedly withheld, as was decided in
Gnisenmeyer v. City of Logansport, supra^ and the cases fol-
lowing it.

This conclusion renders it unnecessary to notice the assign-
ment that the claim filed does not state facts sufficient to con-
stitute a cause of action.

The order of the court in dismissing the appeal should,
therefore, be affirmed.

Per Curiam. — It is therefore ordered, upon the foregoing
opinion, that the judgment be and it is hereby in all things
affirmed, at the appellant's costSt



Smith

V.

Strother, Auditor, eta

(Advance Case, California, August 27, 1885.)

The act of March 21, 1885, California Legislature, providing that the
compensation of official shorthand reporters shall be fixed by the judge in
whose court they act, is not unconstitutional. It is neither a delegation of
legislative authority to the judiciary, nor a violation of the constitutional
provision requiring a uniform system of county governments, although it
fixes a different rate of compensation according to differences in the popu-
lation of the counties served by such reporters ; nor is it unconstitutional
as imposing a new set of officials on the people.

Appeal from a judgment of the superior court of the city
and county of San Francisco, entered in favor of the defen-
dant, in a proceeding to compel him to audit plaintiffs
demand as official reporter.

W. M. Pier son and A. L. Hart^ amicus curuB^ for appellant
John L. Lave for respondent

Ross, J. — ^The last legislature passed an act, approved
Pacts. March 21, 1885, entitled "An act to amend section

274 of an act entitled 'An act to establish a civil code of pro-



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SMITH V. STROTHER. 235

cedure relative to the compensation of court reporters/* by
which it is provided that the official reporter shall receive as
compensation for his services a monthly salary, to be fixed
by the judge, by an order duly entered on the minutes of the
court, which salary shall be paid out the treasury of the
county, in the same manner and at the same time as the salaries
of county officers, with 2l proviso to the efiFect that such salary
shall not exceed three hundred dollars per month in counties
having a population of one hundred thousand and over, and
shall not exceed two hundred and seventy-five dollars per month
in counties having a population less than one hundred thousand
and exceeding fifty thousand, and so on to and including
counties having a population less than five thousand, in which
the maximum is fixed at seventy-five dollars per month. The
act contains other provisions not important to mention, and
further provides that " in civil cases in which the testimony
is taken down by the official reporter, each party shall pay a
per diem of two dollars and fifty cents before judgment or
verdict therein is entered ; and where the testimony is tran-
scribed, the party or parties ordering it shall pay ten cents
per folio for such transcription on delivery thereof ; said/^r
diem and transcription fees to be paid to the clerk of the
court, and by him paid into the treasury of the county, and
such portion as shall be paid by the prevailing party may be
taxed as costs in the case."

The act is claimed to be violative of the constitution in
three respects : First, as " a delegation of legislative power
to the judiciary ; " second, " in violation of the constitutional
provision requiring a uniform system of county govern-
ments," and, third, because it imposes a new set of officials
upon the people, in contravention of section 6, article xi., of
the constitution."

Of course, we have nothing to do with the policy of the law,
and it is our duty to sustain it unless we can see ^^^^ ^^.
clearly that it is in conflict with the paramount ™^"SJoi8l1*
law of the State. And this we cannot do. In so far "**"'
as the right to confer upon the judges the power and duty of
fixing the compensation of reporters is concerned, the provi-
aons of the act in question are similar to those of all of the
former statutes upon the subject, commencing with the act
of May 17, 1861, Statutes 1861, page 497. Immediately



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236 SMITH V. STROTHER.

prior to the adoption of the codes, the law with respect to
phonographic reporters of the courts in San Francisco was
contained in the act of March 13, 1866, Stats. 1865-6, p. 232;
and in the act of March 28, 1868, Stats. 1867-8, p. 425. Each of
those statutes, as well as the provisions of the code of civil
procedure, authorized the judge to fix the compensation of
the reporter in certain cases. And in Ex parte Reis, 64 Cal.
234, it was said that whether the acts of 1866 and 1868 or the
provisions of the Code were to control the determination of
that case was immaterial, as " ifi either case, just before the
adoption of the present constitution, the district court and
county court could legally employ the power of appointing
a shorthand reporter, fix his compensation in criminal cases,
and order such compensation to be paid, and it was the duty of
the treasurer to pay the same upon the order of the court"
It is true that the point now made was not made in Ex parte
Reis, nor does the constitutionality of the various statutory
provisions conferring upon the courts the power pf fixing the
compensation of reporters seem ever before to have been
raised in this State.

In our opinion, the point is not well taken. Phonographic
reporters are officers of the court in the same sense that
sheriffs and clerks are. They constitute part of the judicial
system of the State. The court may fix the fees of referees,
commissioners, keepers, etc., in proper cases — why not of
reporters ? We see in the act of doing so none of the charac-
teristics of legislation. Nor does it in any manner contravene
couBT SHORT- ^^^ provislou of the constutition requiring theleg-
S^Ko/i^^ islature to establish " a uniform system of county
SET OF OFFICERS govemmeuts." Phonographic reporters are not
county officers, and have nothing to do with county govern-
ments. They are, as already said, officers of the courts, and
constitute a part of the judicial system of the State. Nor
does the act in question " impose a new set of officials upon
the people, in contravention of section 6 of article xi. of the
State constitution." The " officials" referred to in the act of
March 21, 1885, were already provided for by law. See Ex
parte Reis, 64 Cal. 233, and the statutes there and herein before
referred to.

Section 6 of article xi. of the constitution, cited in support
of this point of respondent, reads :



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SMITH V. STROTHER. 237

" Corporations for municipal purposes thall not be created
by special laws ; but the legislature, by general laws, shall
provide for the incorporation, organization, and classification,
in proportion to population, of cities and towns ; which laws
may be altered, amended, or repealed. Cities and towns here-
tofore organized or incorporated may become organized
under such general laws whenever a majority of the electors
voting at a general election shall so determine, and shall
organize in conformity therewith ; and cities or towns here-
tofore or hereafter organized, and all charters thereof framed
or adopted by authority of this constitution, shall be subject
to and controlled by general laws."

The framers of the constitution, as we had occasion to say
in Staude v. Election Commissioners, 6i Cal.. 320, meant
something when they inserted the provision that *' cities or
towns heretofore or hereafter organized, and all charters
thereof framed or adopted by authority of this constitution,
shall be subject to and controlled by general laws," and we
are not at liberty to hold that they did not mean what they
said. Giving, as they did, to all cities and towns, and cities
and counties, the right to organize under a general act of
incorporation, which the legislature was directed to pass, or
to continue their existence under their existing charters, as
they might elect, they nevertheless said that, whichever
course should be pursued, such cities and towns, and cities
and counties, should be subject to and controlled by general
laws as should be passed by the legislature other than those
for the "incorporation, organization, and classification" of
cities and towns. The constitution has provided, in effect,
that the city and county of San Francisco shall not be com-
pelled to surrender its present charter for one it does not
want ; and, further, that its charter shall not be changed by
special legislation, directly nor indirectly, under the guise of
law^s relating to cities, or cities and counties, containing a pop-
ulation of more than one hundred thousand inhabitants. At
the same time, recognizing the fact that the city and county
of San Francisco remains a subdivision of the State, the con-
stitution has said, in effect, that it, as well as all other cities
and towns heretofore or hereafter organized, shall be sub-
ject to and controlled by such general laws as the legislature
shall enact other than those for the incorporation, organiza-



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238 THE STATE ex Til SIMMONS V. JOHN.

tion, and classification, in proportion to population, of cities
and towns.

Judgment reversed and cause remanded, with directions to
the court below to overrule the demurrer.

Thornton, J., and Morrison, C. J., concurred.

McKiNSTRY, J., CONCURRING.— I concur in the judgment,
and in the conclusion that the act of March 21, 1885, is valid
and operative.

Myrick, J., dissented.



The State ex rel. Simmons
John.

(81 Missouri, 13.)

The right to an office cannot be determined in a proceeding by mcmda*
mus to compel the payment of salary to a person claiming such office, or
in a proceeding to compel the performance of official duty all^;ed to be
obligatory by reason of the official character of the claimant. In such
cases he who has the better prima /acie right must be recognized until,
by contesting the election, or by proceedings in ^uo warranto, the rights
of the parties are finally determined.

The authority which city councils may have possessed to hear and de-
termine a contested election for city officers was abrogated by section
9, article 8, of the constitution, which provides that " the trial and deter-
mination of contested elections of all public officers, whether State, judi-
cial, municipal, or local, except governor and lieutenant-governor, shall be
by the courts of law, or one or more of the judges thereof."

Appeal from Lafayette Circuit Court Hon. Wm. T.
Wood, Judge.

Walker & Field znA Alexander Graves for appellant.
J. D. Shewalter for respondent.

Hough, C. J. — This is a proceeding by mandamus to com-
PAow. pel the respondent, who is mayor of the city of

Lexington, to sign a warrant in favor of the relator, Simmons,
drawn by Thomas B. Claggett, who is alleged to be register
and treasurer of said city of Lexington. The respondent re-
fused to sign said warrant, and alleged as a reason therefor



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THE STATE ex rel. SIMMONS V. JOHN. 239

that said Claggett is not register and treasurer of said city,
but that Henry Turner is ; that said Turner received a cer-
tificate of his election from the city council, was duly com-
missioned by the mayor, qualified and gave bond as such in
June, 1880. The relator admits that said Turner was com-
missioned and qualified as alleged, but avers that thereafter,
and within the time provided by law, said Claggett instituted
proceedings before the city council to contest the election of
said Turner, and that said counsel declared the vote for said
parties, who were the only candidates, to be a tie, and or-
dered a new election, at which said Claggett was duly elected,
and, having received a certificate thereof, was duly commis-
sioned and qualified as register and treasurer as aforesaid.
The respondent denies the jurisdiction of the city council to
determine a contest for the office of register and treasurer,
and its authority to order the special election at which Clag-
gett claims to have been elected.

We have stated the issues, not in the order in which they
are stated in the pleadings, but in the order in which they
should have been stated. It appears from the record that
Turner and Claggett each claimed, at the time these proceed-
ings were instituted, to be the rightful incumbent of the office
in question, and each assumed to act as register and treasurer,
and that no proceedings by quo warranto had been instituted
by Claggett against Turner, and that Turner had possession
of the records, seal, money, books, and papers of said city, and
was performing some of the duties of his office, but that Clag-
gett was recognized by a majority of the council as the right-
ful register, and kept their minutes. It seems to be conceded
that the respondent, as mayor, cannot lawfully sign the war-
rant in question, unless it has been drawn by the register.
The mayor refuses to recognize Claggett as register, and the
purpose of this proceeding is to compel him to do so. It is
contended for the relator that no inquiry can be had in this
proceeding into the right of Claggett to the office of register,
and that, being a de facto of^cevy the mayor is bound torecog-
liize his official acts. With the ultimate right of either Tur-
ner or Claggett to the office of register we can have nothing
to do in this proceeding. The right to an office ^^^ -trial
cannot be determined in a proceeding by manda- ^a^SIqSS
*ww to compel the payment of salary to a person ^**"*^*'^



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240 THE STATE ex reL SIMMONS V. JOHN.

claiming such office, or, in a proceeding like the present, to
compel the performance of official duty alleged to be obliga-
tory by reason of the official character of such claimant In
such cases he who has the h^XX^x prima facie right must be
recognized until, by contesting the election or by proceed-
ings in qtio warraniOy the rights of the parties are finally de-
termined. Under this view of the law, which is supported by
the decision of this court in the case of the State ex reL Vail
V. Draper, 48 Mo. 213, it is quite plain on the facts in this
record that if Turner had instituted a proceeding by manda-
mus to compel the payment of his salary as register, he would
have been entitled to a peremptory writ. The votes for Tur-
ner and Claggett were duly canvassed. Turner received the
certificatie, was duly commissioned and qualified. There-
coHTKBTKD ^^^r, thc clty couucil, without authority of law,
S^SSiSi^ heard a contest for the office, declared a tie vote,
"^"* and ordered another election. We say without

authority of law, because it is provided by section 9, article
8, of the constitution that "the trial and determination of
contested elections of all public officers, whether State, ju-
dicial, municipal, or local, except governor and lieutenant-
governor, shall be by the courts of law, or one or more of the
judges thereof." This provision, under the first section of the
schedule, went into effect on the first day of July. 1877, and
completely abrogated all authority which the city council
may have previously possessed to hear and determine a con-
tested election for city officers. In granting a certificate of
election to Turner, the city council exhausted its jurisdiction
in the premises, and all further proceedings had by it, which
resulted in the election of Claggett, were wholly and utterly
void. State v. Draper, supra. The election held was at most
a mere voluntary election, and Claggett acquired no rights
thereunder. The city council could not give Claggett any
rights superior to those of Turner, by recognizing him as
register in its meetings or otherwise. Turner, being regu-
larly commissioned and qualified, and being ready and will-
ing to discharge the duties of the office, and, in so far as he
was able, being engaged in discharging his duties, and being
possessed of the books, papers, seal, and records of , the city,
was properly recognized by the mayor as the rightful regis-
ter, and the writ of mandamus should have been by the cir-



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NOBLE V. BOARD OF COMMISSIONERS OF WAYNE COUNTY. 24I

cuit court. Its judgment must, therefore, be reversed. All
concur.
Reversed.



Noble

V.

Board of Commissioners of Wayne County.

(loi Indiana, 127.)

Before a county clerk is entitled to demand compensation from the
county treasury for services performed by him in his official capacity, he
roust show, first, a statute authorizing him to receive compensation for
such services and fixing the amount thereof, and, second, a statute au-
thorizing the county commissioners to pay for such services out of the
county treasury.

From the Wayne Circuit Court
H. C. Fox for appellant.

MrrcHELL, J.— On the 6th day of June, 1882, William T.
Noble, clerk of the circuit court for the county of facto.

Wayne, filed with the auditor the following account or
claim :
" Wajme County, Indiana :

To Wm. T. Noble, Dr.

Statistical reports of marriage: March 50c., April 50c., May 50c. $1.50

Three certificates for same, with seal, 50c 1.50

Order to draw jury loc, index loc, certificate 50c 70

44 certificates to auditor for jurymen. 50c 22.00

Venire for jury (under seal) 75

Four appointments judge pro tern., and certificate, 75c. . . 3.00

Record of marriages for board of health for yV 12.50

85 civil order-book entries and orders loc 8.50

74 probate order-book entries and orders loc 7.40

28 criminal order-book entries and orders loc 2.80

Filing 54 miscellaneous papers, 5c 2.70

2 certificates of election of justices of peace to Secretary of

State 50C i.oo

4 certificates of board of equalization, record and copy to each 6.00
Filing 250 election papers, consisting of tally-sheets, poll-books,

and certificates, 5c 13.25

$83.60"
9 Cor. Cas.— 16



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242 NOBLE V. BOARD OF COMMISSIONERS OF WAYNE COUNTY.

Of this account the board of commissioners allowed items
amounting to about $30, and disallowed others amounting to
$5365. From the order of the board the clerk appealed to
the circuit court, where the case was submitted for trial on
an agfreed statement of facts, in which statement it was ad-
mitted that the services charged for were rendered. The
court refused to allow any part of the claim, and the case is
before us on appeal.

Before the appellant is entitled to demand compensation
2Sottt"^*SSS ^'*^™ ^^^ county treasury for services performed
noH. *^"^^- by him in his official capacity, it is necessary for
him to show — i. A statute authorizing him to receive com-
pensation for such services, and fixing the amount thereof.
2. A statute authorizing the county commissioners to pay
for such services out of the county treasury.

It was decided as early as Rawley v. Board, etc., 2 Blackt
355, and it has been the law ever since, that a county cannot
be liable for the fees and charges of officers without an ex-
press statute on the subject Board, etc., v. Blake, 21 Ind.
32 ; Board, etc., v. Templer, 34 Ind. 322 ; Taylor v. Board,
etc., 67 Ind. 383 ; gtate ex rel. v. Wallace, 41 Ind. 445 ;
Wright V. Board, etc., 98 Ind. 88.

In the absence of a statute, a county is liable to pay fees
and charges to the clerk precisely in the same manner that an
individual is, and not otherwise, and except where a statute
expressly authorizes the boards of commissioners to make al-
lowances to him for services which he performs in the course
of his official duties, they have no more authority, and are
under no greater liability, to pay him for such services than
to pay for any other services not performed for the county.
We have been unable to find any statutes which fix any com-
pensation for the clerk for performing any of the services
above specified, or which authorize the county boards to pay
for such services out of the public treasury ; and as neither
the appellant nor his counsel have pointed out any law for
either, we have some confidence that none exists.

The judgment is affirmed.



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ALDRICH V. PICARD. 243



Aldrich, Clerk,



V.



PiCARD, Comptroller.

(14 Lea, Tenn. 456.)

The compensation of clerks and other officers for making sales of the
land of delinquent taxpayers does not, as between them and the State,
depend upon the validity of the sales made.

The clerk is entitled to fifty cents for each tract of land sold since the
passage of the act approved March 20, 1883, for the taxes assessed under
the act of 1881, chapter 171.

Appeal in error from Circuft Court of Davidson county.
Frank T. Reid, J.
Pilcher & Weaver for Aldrich.
Aitamey-General Lea for Pickard.

Freeman, J. — This is an agreed case, showing that the
real estate of Davidson county was duly assessed faotb.

for taxes for the year 1882, as provided by the act of LfCgisla-
ture passed April, 1881. Page 198 et seq. of Acts.

The list of delinquents, amounting to 3,123 tracts of land,
was sold for taxes of that year, on the first Monday of July,
1883, and within thirty days a certified report of said sale
was made to the circuit court, and on the first day of August,
1883, said court entered judgment on said report, condemn-
ing said list of lands and town lots. The above lands were
all purchased by the State — this being the only sale of lands
for taxes of 1882 made in said county.

The clerk claims, and so reported to the comptroller, that
he had performed all the duties required by the act of 1883,
chapter 105, and insists he is entitled to the sum of fifty cents
for each separate tract of the said lands, which the comp-
troller denies, and this is the question to be decided.

The defence is rested on the ground, as we understand it,
that the act of 1881, chapter 171 (passed April 6), providing
for the assessment of taxable property, entitled ** An act to
provide more just and equitable laws for the assessment and



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244 ALDRICH V. PICARD.

collection of revenue for State and county purposes, and to



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 25 of 73)