1906-1908 Ind. Op. Att'y Gen. p. 174b

INDIANA GIRLS' SCHOOL-APPROPRIATION MAY BE USED FOR CONSTRUCTION OF WOODEN RESER- VOIR OR STANDPIPE IN PREFERENCE TO IRON ONE. May 10, 1907. Mrs. John B. Elam, 1320 Park Avenue, Indianapolis, Indiana: Dear Madam-In answer to your inquiry of the 6th inst.,. with reference to the appropriation to be used in constructing a standpipe, I beg to advise that it is my opinion that the appro- priation of $2,000 for the purpose of constructing the standpipe referred to may be used for the construction of a wooden reservoir or standpipe in preference to an iron one. The usual and ordi- nary meaning of the term standpipe is an upright reservoir for the purpose of holding water or other liquid, and sometimes gas. There is no presumption, however, that the standpipe is made of iron. It may be constructed of cement, iron, brick, wood or tile, or any other material. I think the real object and purpose of this appropriation was to enable the board to provide some sort of receptacle in aid of the water supply of the institution, and if some other form of reservoir is better than the standpipe I can see no possible objec- tion to making the change. SHERIFFS-FEES FOR DELIVERING PRISONERS, ETC. May 9, 1907. lon. John C. Billheimer, Auditor of State: Dear Sir-Your communication of May 7th received, in which you ask for my opinion whether, under §122 of the act approved March 6, 1905, providing for the taxing of county sheriffs' fees, "Can sheriffs collect mileage from the state for delivering pris- oners to the reformatory at Jeffersonville, and also to the new virls' school in Marion county?" That part of the section necessary to be construed in answer- ing your question is as follows: "For removing a person to the state prison, reform school for boys, or reformatory for women and girls, four cents a mile for each mile necessarily traveled for each person in custody, the sheriff and the attendants allowed by law who may actually accompany such sheriff; such sum to be paid out of the state treasury on certificate of the warden or officer receiving the prisoner and on the verified statement of such sheriff made and filed with the auditor of state, who shall draw his warrant therefor." The fee and salary law of 1881 provided that county sheriffs should be allowed "For taking each convict to the state prison, going and returning by the nearest route traveled, fifteen cents per mile; and for each additional convict taken at the same time, the actual expense of additional convict; which shall be paid out of the state treasury on certificate of the warden of the prison. " Section 123 of the act in force June 3, 1891, providing for the compensation of county sheriffs, provided that "In addition to the salary herein provided for, -the sheriff shall be allowed his actual traveling expenses in the following cases: For taking each convict to the state prison, to be paid out of the state treasury upon the certificate of the warden of the prison, accompanied by an itemized statement of such expenses, verified by affidavit of the sheriff." This was followed by the fee and salary law of 1895, which put county sheriffs on a salary based upon the population of and services to be rendered in the various counties of the state, ex- cept that fees were still to be allowed in some instances. It was provided in section 122 of the act (Acts 1895, p. 352) that sheriffs should be allowed, in addition to their regular salaries, "For removing a person to the state prison, reform school for boys, or reformatory for women and girls, three cents a mile for each mile necessarily traveled for each person in custody, the sheriff and attendants allowed by law who may actually accompany such sheriff, such sum to be paid out of the state treasury on certifi- cate of the warden or officer receiving the prisoner and on the verified statement of such sheriff made and filed with the auditor of state who shall draw his warrant therefor." Section 122 of the act of 1895 above referred to was amended by the act of March 6, 1905, now in question, heretofore set out in this opinion. Up to 1897 the present Indiana Reformatory at Jeffersonville was known as "The Indiana State Prison South," and the pres- ent Indiana state prison was known as "The Indiana State Prison North"; so that the act of 1895, allowing county sheriffs mileage for removing prisoners to the state prison meant, and was con- strued as meaning, that such sheriff was entitled to such allow- ance for removing prisoners to either location. The act of 1897 renamed the two state prisons and classified the prisoners that should be incarcerated in each. Notwithstand- ing this fact, they each remained state prisons and the duties and expenses of county sheriffs in removing prisoners to both was in no way changed. The' act of 1905 provides that sheriffs are entitled to draw mileage for removing prisoners to the reformatory for women and girls, while the act of March 11, 1903 (Acts 1903, p. 524), separated this institution by creating the Indiana Industrial School for Girls and provided for the removal of girls from the Women's Reformatory; and the act of 1907 (Acts 1907, p. 139) changed the name of the Indiana Industrial School for Girls to that of "Indiana Girls' School." These various acts of separation and renaming have in no wise lessened the expenses or changed the duties of county sheriffs in removing prisoners to them, and the same necessity exists for the state to provide a means for paying such expenses. As said by Attorney-General Ketcham, in an opinion to your predecessor, on July 9, 1895: "The punishment of criminals and the care and conduct of them is a state, and not a county, act and is so generally recognized in jurisprudence in this state." The law requires sheriffs to deliver prisoners to the reforma- tory at Jeffersonville, and to other penal institutions, and while the legislature undoubtedly has the right to command the serv- ices by an officer without specific compensation and may add duties upon him without additional compensation, still the law should not be so constrLed to impose a specific duty upon an officer which necessitates him to pay out a part of his salary for the public, unless there be imperative necessity for such a con- struction. It can not be said that the legislature, knowing that the law required county sheriffs to remove prisoners from the place of their conviction to the place of their imprisonment, intended that such officers should apply a part of their stated salaries to pay the expenses of such removals. The technical language used in the act of 1905 is, "For removing a person to the State Prison"- yet it would be an unreasonable construction to declare because one institution is named as "Indiana State Prison" the act did not apply. While the act in question does not expressly name the Indiana Reformatory or the Indiana Girls' School, it is my opinion that the intention of the legislature of 1905, in view of the former acts on the same subject and the purposes to be accomplished, was that they should be included. The act of 1897 naming the Indiana Reformatory and provid- ing what class of convicts should be sent there, and what class should be sent to the Indiana State Prison, did not change the na- ture or.purpose of these institutions, and the term Indiana prison as used in the act in question is broad enough to include both in- stitu'tions, and the same is true of the Women's Prison and In- diana Girls' School. It is, therefore, my opinion that sheriffs are entitled to collect mileage from the state for delivering prisoners td the Indiana Re- formatory at Jeffersonville and also the Indiana Girls' School. STOCK FOODS (CONDIMENTALS AND MEDICATED) GOV- ERNED BY ACT TO REGULATE SALE OF CONCEN- TRATED COMMERCIAL FEEDING STUFFS. May 14, 1907. Mr. Arthur Goss, Director and State Chemist, Lafayette, Indiana: Dear Sir-In answer to yours of the 29th ult., in which you ask whether condimentals and medicated preparations such as Pratt's Stock Food, International Stock Food, Dr. Hess's Stock Food, Rawleigh's Imperial Stock Food, and others of a similar character, when sold under the name, brand or trade mark of stock or poultry foods, are covered by the act to regulate the sale of concentrated commercial feeding stuffs in the state of Indiana, passed by the last general assembly, I beg to advise that in my opinion section 11 of the act referred to covers all classes of stock food other than those excluded from its operation by the following express language of said section, to wit: "But it shall not include straw, whole seeds, unmixed meals made directly from the entire grains of wheat, rye and barley." It will be observed that among other things included in the definition of concentrated commercial feeding stuff in said sec- tion are "condimental feeds, poultry feeds, stock feeds, patent proprietary or trade and market stock and poultry feeds." The word "condiment" is defined in the Standard Dictionary [12-19395]