1906-1908 Ind. Op. Att'y Gen. p. 126

126 Under ordinary circumstances the right of the individual to recover a particular fee from the clerk would become outlawed six years after demand was made therefor; but if no demand was made for over six years after collection of such fee, and the six years have expired prior to the present time, then the claim is barred as to that. fee. But if the collection was made less than six years ago, but no demand has been made by the individual claimant, my opinion is that the claim is not barred, and the six- year statute of limitations runs from the date of demand by such individual, provided the demand is made within six years from date of collection. Therefore, all sheriff's and transcript fees collected prior to March 20, 1901, for ohich no demand has been made, are now barred. The claim for those collected subsequent to 1901 will be- come barred six years after demand. LUCRATIVE OFFICES-MEMBER OF SCHOOL BOARD AND POSTMASTER. March 21, 1907. Hon. Fassett A. Cotton, Superintendent of Public Instruction, Indianapolis, Indiana: Dear Sir-Your communication of March 21 received, in which you ask: "First. If it is legal for a member of the school board to continue serving on said board after receiving appoint- ment as postmaster. "Second. Are the acts of the board legal if a member of the board takes part in its proceedings, at the same time being postmaster ?" Section 90, Burns' Annotated Indiana Statutes 1901, being section 9 of article 2 of our state constitution, provides: "No person holding a lucrative office or appointment under the United States, or under this state, shall be eligible to a seat in the general assembly; nor shall any person hold more than one lucrative office at the same time, except as by this constitution expressly permitted: Provided, That officers in the militia to which there attached no annual salary, and the office of deputy postmaster, where the com- pensation does not exceed ninety dollars per annum, shall not be deemed lucrative; and, provided, also, That coun- ties containing less than one thousand polls may confer the office of clerk, recorder and auditor, or any two of said offices, upon the same person." It was held by our supreme court in the case of Bishop v. State ex rel., 149 Ind. 223, that the term "deputy postmaster" used in the above section of our constitution means postmaster. It has also been determined by our supreme court that the office of school trustee is a lucrative office, and that under the pro- visions of section 9 of article 2 of our constitution a person could not hold such an office and the office of trustee of the institute for the education of the deaf and dumb at the same time, owing to the fact that both offices are lucrative. Chambers v. the State ex rel, Barnard, Pros. Atty., 127 Ind. 365. If the salary of office of postmaster exceeds ninety dollars per year, such office is a lucrative office. It is my opinion, therefore, that one person cannot legally serve as postmaster and member of the school board at the same time, provided that the salary of postmaster exceeds ninety dollars per year. It is my opinion that when a member of the school board accepts an appointment as postmaster and qualifies as such, that he thereby vacates the office of school trustee. It does not follow, however, that the acts of the school board thereafter in which he partiepates are illegal. Having been elected and acting as a member of the board at the time of the acceptance of the office of postmaster, although not longer entitled to hold the first-named office, he would still be a de facto officer, and though subject to be ousted from the office, his acts while yet in office in my opinion would be legal. SCHOOL TRUSTEE-RESIDENCE A QUESTION OF INTENTION. March 22, 1907. Hon. Fassett A. Cotton, Superintendent of Public Instruction, In- dianapolis, Indiana: Dear Sir-I am in receipt of your communication of March 20th in which you ask for my opinion as to the right of T. E. Elbert to hold the office of school trustee of Laconia school corporation, and you quote from his letter to you, in which he says: "I was appointed trustee of Laconia (Ind.) school cor- poration for a term of three years beginning August, 1906;