Henderson v. The State ex rel. Stout

• Decision Date: 25 January 1894
• Docket Number: 17,026
• Citation: 36 N.E. 257,137 Ind. 552
• Parties: Henderson, Auditor of State, v. The State, ex rel., Stout, Sheriff of Vigo County
• Court: Indiana Supreme Court

36 N.E. 257

137 Ind. 552

Henderson, Auditor of State, v. The State, ex rel., Stout, Sheriff of Vigo County

No. 17,026

Supreme Court of Indiana

January 25, 1894

Petition for a Rehearing Overruled May 15, 1894.

From the Marion Circuit Court.

Judgment reversed, with directions to the circuit court to sustain the appellant's demurrer to the complaint.

A. G Smith, Attorney-General, F. H. Blackledge and W. W. Thornton for appellant.

B. K. Elliott, W. F. Elliott, J. W. Kern, A. C. Ayres, A. Q. Jones, J. E. Lamb and J. T. Beasley, for appellee.

Coffey J., McCabe, J.

OPINION

Coffey, J.

On the 25th day of April, 1893, the appellee filed a petition in the Marion Circuit Court, the purpose of which was to compel the appellant, as State auditor, to draw a warrant on the State treasurer in favor of the relator, as sheriff of Vigo county, as compensation for the delivery of convicts at the Southern State prison.

It is alleged in the petition, among other things, that the relator is the sheriff of Vigo county, having been elected to that office at the November election, in the year 1892; that in the year 1892 and in the year 1893, as such sheriff, he conveyed from Vigo county to the State prison south, and delivered to the warden, a given number of convicts, convicted and sentenced in the Vigo Circuit Court; that he was entitled to receive as mileage for the performance of such duty the sum of fifteen cents for each mile traveled, going and returning, for each convict conveyed to the prison, except when more than one was taken at the same time, to be paid out of the general funds in the State treasury; that there is in the general fund in the treasurer's office far more than sufficient to pay the relator's claim; that on the 21st day of April, 1893, the relator demanded of the appellant, who then was, and still is, the auditor of State of the State of Indiana; that he draw a warrant on the treasurer of State for the sum due him, to which demand the appellant refused to accede, putting such refusal upon the sole ground that the relator was not entitled to any warrant whatsoever, because the act of the General Assembly of the State, entitled "An act fixing the compensation and prescribing the duties of certain State and county officers, and providing penalties for the violation of its provisions," passed notwithstanding the objections of the Governor thereto, March 9, 1891, p. 424, does not allow the sheriffs of the State to receive mileage for such services; that the claim of the appellant that the act of March 9, 1891, supra, precludes the relator from receiving the mileage claimed by him is wholly and totally unfounded in this, that the act is in conflict with the provisions of the constitution of the State and is utterly void.

To this petition, and to the alternative writ of mandamus issued thereon, the circuit court overruled a demurrer, and, the appellant failing and refusing to answer further, a peremptory writ was ordered, from which action and judgment of the court this appeal is prosecuted.

The assignment of error calls in question the propriety of this ruling.

On the 9th day of March, 1891, the General Assembly of the State, notwithstanding the Governor's objections thereto, passed an act entitled "An act fixing the compensation and prescribing the duties of certain State and county officers, and providing penalties for the violation of its provisions."

The act purports to fix the compensation of the Governor of the State, Lieutenant-Governor, secretary of State, auditor of State, treasurer of State, attorney-general, State librarian, clerk of the Supreme Court and his deputies and assistants, including his stenographer and type-writer; superintendent of public instruction, director of the department of geology and natural resources, inspector of mines, chief of bureau of statistics, inspector of mineral oils, secretary of the State board of health, judges of the Supreme Court, law librarian of the Supreme Court, sheriff of the Supreme Court, judges of the circuit courts of the State, judges of the superior courts, judges of the criminal courts, prosecuting attorneys, county auditors, county treasurers, county recorders, clerks of the circuit courts and sheriffs of the several counties of the State.

It requires certain State officers to tax the fees therein fixed, and pay the same into the State treasury. It also requires the clerks of the circuit courts and the sheriffs of the several counties to tax the fees therein specified against litigants in court, and pay the same into the county treasury.

The twenty-first section of the act is as follows: "The county officers in this act named shall be entitled to receive for their services the compensation specified in this act, which compensation is graded in proportion to the population and the necessary services required in each of said several counties, subject to the conditions herein prescribed, and they shall receive no other compensation whatever."

Section one hundred and twenty-three provides that the sheriffs of the several counties of the State shall, on behalf of their respective counties, tax and charge the fees provided by law on account of services performed by such officers; the fees and amounts so charged shall be designated "sheriff's costs," but they shall in no sense belong to or be the property of the sheriff, but shall belong to, and be the property of, the county. This section further provides that, in addition to his salary, the sheriff shall be allowed his actual traveling expenses 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 the affidavit of the sheriff.

The act undertakes to compensate county clerks, sheriffs, auditors, treasurers and recorders, by a fixed salary payable quarterly out of the county treasury from funds to be known respectively as "clerk's fund," "auditor's fund," "treasurer's fund," "sheriff's fund" and "recorder's fund." The clerks, sheriffs and recorders can not draw from the treasury, on account of salaries, a sum in excess of the fees taxed, collected and paid in by each of them prior to the payment of their respective salaries.

Section one hundred and thirty-six of the act is as follows: "Where any clerk, auditor, recorder, treasurer or sheriff has been elected by the people of his county, before the taking effect of this act, such officer so elected, during the time that he holds such term, shall not be subject to the provisions of this act. He shall hold such term of office, and perform the duties thereof, and receive the compensation prescribed by law the same as if this act had not been passed."

The pleadings, including the assignment of error, in this case, are in such form as to present for our consideration and decision the question as to whether this enactment is a valid law under the constitution of the State.

In passing upon and deciding the numerous intricate and important questions presented in this case by the learned counsel who have so ably briefed and argued them, it is important that we should constantly keep in mind the oft repeated declaration and rule that the power to declare a statute unconstitutional is a high one, and will never be exercised in doubtful cases. To doubt the constitutionality of a law, is to resolve in favor of its validity. An act of the Legislature is not to be declared unconstitutional unless it is clearly, palpably and plainly in conflict with the constitution. It is well to keep in mind, also, the well known rule that courts will pass upon such constitutional questions only as are necessary to a decision of the cause upon its merits. Brown v. Buzan, 24 Ind. 194; Anderson v. Caldwell, 91 Ind. 451; State, ex rel., v. Insurance Co., etc., 115 Ind. 257, 17 N.E. 574; State, ex rel., v. Denny, Mayor, 118 Ind. 382; Parker v. State, ex rel., 133 Ind. 178, 32 N.E. 836.

Against the validity of the law, it is contended by the appellee:

First. That it violates section 19, article 4, of the State constitution, which declares that "every act shall embrace but one subject and matters properly connected therewith; which subject shall be expressed in the title."

Second. That it violates section 12, article 1, of the constitution, which requires that "Justice shall be administered freely and without purchase; completely, and without denial; speedily, and without delay."

Third. That it violates section 22, article 4, of the constitution of the State, which provides that "the General Assembly shall not pass local or special laws * * in relation to fees or salaries; except that the laws may be so made as to grade the compensation of officers in proportion to the population and the necessary services required."

Fourth. That it violates section 23, article 4, of the constitution, which provides that "In all cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State."

The constitutional provision set out in the first objection to the law under immediate consideration, has often been before this court for construction and application.

It has been repeatedly declared that the purpose of this provision is:

First. To prevent the passage of an act under a false and delusive title which did not indicate the subject-matter contained in the act, whereby legislators might be deceived into the support of measures, in ignorance of their true character.

Second. To prevent the combining together, in one act, of two or more subjects having no relation to each other, whereby members in order to procure...