1906-1908 Ind. Op. Att'y Gen. p. 121b

SCHOOL OFFICERS-FAILURE TO COMPLY WITH MINI- MUM WAGE LAW. March 18, 1907. Ron. Fassctt A. Cotton, Superintendent of Public Instruction: Dear Sir-I am in receipt of your favor of March 15, 1907, in which you state you have been requested to institute suit under section 3 of the acts of 1903, page 529, against certain school offi- cers for failure to comply with the minimum wage law. You ask how you should proceed in the matter. The section in question reads as follows: "All school officers shall comply with the provisions of this act and shall pay the teachers employed by them no less than such an amount as shall be determined by sections 1 and 2 of this act. School officers who shall be adjudged guilty of violating any of the provisions of this act shall be fined in any amount not exceeding one hundred dollars ($100) for such offense. The state superintendent of public instruction is hereby authorized to bring action against any school officer violating any of the provisions of this act." You will observe the superintendent of public instruction is "authorized" to bring action. The word "authorized" means 'warranted,' ''permitted,'' "justified." (See Webster's Diet.) The statute is not mandatory, but permissive. I therefore advise you to look into this alleged violation of the statute, and if, in your judgment, the facts are such as to warrant such action on your part, to request the public prosecutor to take the matter in hand and proceed against the offenders, at the in- stance of the interested party. You cannot, however, be com- pelled to participate in any manner in such prosecution. FEES-COLLECTED AND RETAINED BY FORMER CLERKS OF SUPREME COURT. March 19, 1907. Hon. Edward V. Fitzpatrick, Clerk of the Supreme Court, Indian- apolis, Indiana: Dear Sir-Youa have submitted the following questions, with re- quest for my opinion thereon: 1. "Under the law, can payment to me as clerk of the supreme court from former clerks of the supreme court be enforced of fees due ex-sheriffs and tra-nscript fees paid, and other amounts which fees were collected by such former clerks in their official capacity as shown by the records now on file in this office, which have not been heretofore turned over to their successors in office, nor paid to the persons respectively by whom such fees were earned, and to whom said fees were due?" 2. "Should such collections be enforced by the state of Indiana, the attorney-general or the clerk of the supreme court?" 3. "For how many years back can payment of such amounts be legally enforced?" Replying to these in the above order: First. The section of the statute which became a law February 26, 1907, which here applies, 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 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 state- ment. in the office of the clerk of the supreme court of the state of Indiana, and pay all such fees 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 appropriate action, or otherwise to enforce the collection, for the use and benefit of the party entitled thereto, of any and all such amounts so collected and retained by such person, including the pen- alties aforesaid, against any and all persons liable therefor, and all such unclaimed fees, collected under this act from former clerks that have been paid in for two years, and which remain in the office of the clerk of the supreme court of this state for a period of six months uncollected by the person or persons to whom the same is due, and all other un- claimed fees in the hands of the clerk of the supreme court of this state, after the expiration of two years from the date when such fees are paid to said clerk, shall be paid into the state treasury, to be held as other funds that escheat to the state of Indiana: Provided, however, That it shall be the duty of the clerk of the supreme court, when fees are paid into the office of such clerk for the benefit of any other officer or person, to immediately notify such officer or per- son by mail that such fees are paid into such office, the date of payment and the amount thereof." This section is broad enough to cover sheriff and transcript fees, collected by former clerks in their official capacity; and my answer to your first question accordingly is in the affirmative, sub- ject to the limitations hereinafter mentioned. I do not under- stand what is meant by the term "other amounts," as used in said question; hence my answer is limited to sheriff's and transcript fees. Second. The collection of these fees should be enforced by the state, in suits brought by the attorney-general. The language of the statute is, "It shall be and become the duty of the attorney-gen- eral to proceed by appropriate action, or otherwise, to en- force the collection for the use and benefit of the party entitled thereto, of any and all such amounts so collected and retained by such person, including the penalties afore- said, against any and all persons liable therefor." While the law does not expressly state in whose name the suit must be instituted, it is reasonable to infer that the action should be maintained in the name of the state, which is entitled to the actual custody of these fees while acting through its officers, the clerk of the supreme court and the treasurer of state. As the pos- session of the clerk is only temporary, and since the funds must finally be covered into the state treasury, there is no more reason for the former maintaining the action than there is for the treas- urer of state doing so. The state is the immediate party in inter- est, entitled ultimately to hold these fees "as other funds that escheat to the state," and may sue therefor in its own name and without a relator. This is made evident by the provision that a penalty of 25% shall be due the state from delinquent clerks, and the attorney-general is directed to sue for the unpaid fees, "in- cluding the penalties aforesaid," apparently by the same suit. The action for the penalties must be brought in the name of the state. The statute does not provide for these penalties being cal- lected by the clerk, or for their payment by him to the treasurer. Clearly, therefore, they are to be paid directly into the treasury as a result of the suit; and the proper party to sue therefor, and for the delinquency to which they attach, is the state itself. "A state " - *: has the right to institute suit, whether it be required by its pecuniary interesfs or the gen- eral public welfare, and for this purpose its own courts * 0 * are open to it." (26 Am. and Eng. Encyc. Law, p. 485). Third. The law as it stood prior to the enactment of 1907, pro- vided as follows: "The mileage and fees for service of any process, rule or order issued out of the supreme court shall be the same as in case of similar writs from the circuit court; and when they are served by the county sheriff, he shall be allowed the fees for mileage, and one-half of the fees for service, and the remaining half of the fees for service shall be paid the sheriff of the supreme court." (Burns' Stats. 1901. section 7804.) Section 677, Burns' Stats. 1901, reads: "The fee paid for procuring the transcript, the costs of serving the notice of appeal. and the )rinter's fee for pub- lication, are part of the costs of the supreme court.' Section 676 Burns' Stats. 1901, is as follows: cc ; *' tWhen the judgment is reversed in whole, the appellant shall recover costs in the supreme court There is nothing in the above sections to indicate that the costs known as "sheriff's fees" and "transcript fees" belonged to the state or to any one other than the sheriffs and appellants. Hence, prior delinquent clerks, as public officers, were liable to the indi- viduals for whose benefit the fees were collected. Hence, the fol- lowing statute of limitations would apply as against these indi- vidual claimants: "All actions against a sheriff or other' public officer, or against such officer and his sureties on a public bond, grow- ing out of a liability incurred. by doing an act in an official capacity, or by the omission of an official duty, within five years, but an action may be brought against the officer or his legal representatives, for money collected in an official capacity, and not paid over, at any timne within six years." (Burns' Stats. 1901, section 294 (2).) Under this section it has been held that actions against officers for money received, must be brought within six years after the right of action accrued. See Newson v. Board, 103 Ind. 526. In Lan- ders v. Fisher, 2 Ind. App. 64, it was held that, "Where money is paid to a county clerk by authority of law, he holds it, in a sense, as a trustee for those for whom it was paid, and an action will not lie against him for failure to pay money so received to the beneficiary, until a proper demand has been made, and the statute of limita- tions will iiot be set in motion until the right of action has accrued. Unless the demand is made, however, within the period of limitations, the right of action will be barred., High v. Board, 92 Ind. 1580; Newson v. Board, 1103 Ind. 526." The primary purpose of the act of 1907 was to recover delin- quent fees from former clerks of the supreme court "for the use and benefit of the party entitled thereto," as declared in section 5; i. e., for the benefit of sheriffs, appellants, etc. But it cannot be supposed the legislature intended the state to collect any fees for such parties, to which the latter were not legally entitled and which they could not themselves collect by suit. Hence, all fees whose recovery by their respective claimants was barred by the statute of limitations when the act, of 1907 went into effect, were not within its purview; since to hold otherwise would involve the divesting of a vested right of defense. See Roush v. \Iorrison, 47 Ind. 414, 417; Morrison v. Kendall, 6 Ind. App. 212, 219; 19 Am. & Eng. Encyc. Law, page 171 and note 6. 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