Oliver v. State ex rel. Lahr

• Decision Date: 02 July 1924
• Docket Number: No. 24069.,24069.
• Citation: 195 Ind. 65,144 N.E. 612
• Parties: OLIVER, Auditor of State, v. STATE ex rel. LAHR.
• Court: Indiana Supreme Court

195 Ind. 65

144 N.E. 612

OLIVER, Auditor of State,

v.STATE ex rel. LAHR.

No. 24069.

Supreme Court of Indiana.

July 2, 1924.

Appeal from Superior Court, Marion County; W. W. Thornton, Judge.

Action by the State, on the relation of Frank J. Lahr, against William G. Oliver, Auditor of State, to compel issuance of warrants for amount of salary as Judge of Juvenile Court. Judgment for plaintiff, and defendant appeals. Affirmed.

U. S. Lesh, Atty. Gen., and Edward M. White, Deputy Atty. Gen., for appellant.

Emsley W. Johnson, of Indianapolis, for appellee.

EWBANK, J.

This was an action by appellee's relator to compel the auditor of state, by mandamus, to issue warrants for the amount of salary as judge of the juvenile court of Marion county, Ind., which he alleged was due him under the provisions of chapter 89, Acts 1921, p. 187. Before that act was passed his salary had been paid only from the treasury of the county (section 1630, Burns' 1914; section 1, c. 325, Acts 1913, p. 853), and the auditor of state denied the validity of a provision in the new act “that the salary of each judge of the *** juvenile courts of this state shall be $4,200 annually, payable monthly out of the state treasury,” insisting that it was not embraced by the title of the act. Appellant's demurrer to relator's complaint was overruled, and upon his refusal to answer further a judgment commanding him to draw the warrants was rendered, from which this appeal was taken. Whether or not the title of said act (chapter 89, Acts 1921, p. 187) is comprehensive enough to embrace the language above quoted is the only question presented for decision.

The italics in the language hereafter quoted are ours. The title of the act was as follows:

“An act fixing the salaries of circuit, superior, criminal and probate judges, providing traveling expenses in certain cases and for the payment of such salaries and traveling expenses, and repealing all laws and parts of laws in conflict therewith.”

It did not mention courts, but only the judges. The first section of the act read as follows:

“Section 1. That the salary of each judge of the circuit, superior, criminal, probate and juvenile courts of this state shall be $4,200 annually, payable monthly out of the state treasury: Provided, that in all judicial districts of this state, composed of one county, whether for circuit, superior, criminal, probate or juvenile courts, containing any city which had a population of more than 30,000, as shown by the last preceding United States census, or which contain cities whose aggregate population was more than 60,000 as shown by such census, whenever twenty or more resident freeholders of the county in which such city is, or such cities are, situated shall, by their petition, filed with the board of commissioners of such county, represent that the annual salary of the judge of such circuit, superior, criminal, probate or juvenile court, as otherwise provided by law, is not an adequate compensation for the services of such judge or judges, and should be increased in a sum to be specified in such petition, then it shall be the duty of the board of commissioners of such county, in open session, without delay, at any term of such board, to consider such petition and hear the evidence thereon, and thereupon, such board of commissioners may, by entry of record, fix and allow a certain sum as an addition to or increase of the annual salary of the judge or judges of such circuit, superior, criminal, probate or juvenile court, but in no event in excess of the sum of $2,800 or in excess of the sum specified in such petition; no appropriation by the county council shall be required to authorize such allowance or the payment thereof.” Section 1, c. 89, Acts 1921, p. 187; section 1650a, Burns' Supp. 1921.

It will be observed that “juvenile courts” are mentioned four times in the body of the act, which expressly enacts in favor of judges of “juvenile courts” all of its provisions relating to the salaries of judges of other courts. But that the title mentions only “circuit, superior, criminal and probate judges,” without mentioning the legal names of any courts at all.

The Constitution of Indiana provides that-

“Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.” Section 19, art. 4, section 115, Burns' 1914.

This provision of the Constitution has been held to render many acts and parts of acts unconstitutional, and we cite a number of cases which illustrate the construction that has been given to it by the court in so holding. State v. Wilson, 7 Ind. 516;State v. Bowers, 14 Ind. 195;State v. Young, 47 Ind. 150;Henderson v. London, etc., Co., 135 Ind. 23, 34 N. E. 565, 20 L. R. A. 827, 41 Am. St. Rep. 410;State v. Commercial Ins. Co., 158 Ind. 680, 64 N. E. 466;State v. Board, 166 Ind. 162, 193, 76 N. E. 986;Indianapolis, etc., T. Co. v. Brennan, 174 Ind. 1, 87 N. E. 215, 90 N. E. 65, 68, 91 N. E. 503, 30 L. R. A. (N S.) 85;Morgan v. State, 179 Ind. 300, 101 N. E. 6. On the other hand, it is uniformly held that, when a title shall “express” a “subject,” any provisions of the act which relate to that subject, or to “matters properly connected therewith,” are within such title. And in determining what is the general subject to which the act relates the court will look from the title to the body of the act, and from the body of the act to the title, and from a consideration of all the provisions of both will determine whether or not the provisions are all fairly referable to one general subject expressed in the title, and matters properly connected therewith. Western U. Tel. Co. v. Braxtan (1905) 165 Ind. 165, 168, 74 N E. 985;State ex rel. v. Bartholomew (1911) 176 Ind. 182, 187, 95 N. E. 417, Ann. Cas. 1914B, 91;State v. Closser (1912) 179 Ind. 230, 235, 99 N. E. 1057;Wright v. House (1918) 188 Ind. 247, 259, 121 N. E. 433; 1 Lewis' Sutherland, Stat. Const. (2d Ed.) § 131. Thus, where it fairly appeared from a consideration of the title and body of the act that both related to the general subject of “coal mines,” a section giving a right of action for the death of an employé in a coal mine occasioned by a violation of the act was held to be within the title, as properly connected with such general subject, although the title mentioned only the weighing of coal, the ventilation of mines, the safety of employés, the protection of persons and property injured, the prohibition of work by boys and females in mines, and providing penalties for violations of its provisions. Maule Coal Co. v. Partenheimer (1900) 155 Ind. 100, 105, 106, 55 N. E. 751, 57 N. E. 710. And where the general subject was declaring and enforcing duties of telegraph companies, a provision that any person aggrieved by the negligent failure to deliver a telegram could recover the sum of $100 in a civil action was held to be properly connected with that subject, and within the title, although the several clauses of the title were specific, and mentioned only “prescribing certain duties” of such companies, “prohibiting discrimination between patrons,” and “providing penalties therefor.” Western U. Tel. Co. v. Braxtan (1905) 165 Ind. 165, 74 N. E. 985. And where the general subject was companies operating electric street railroads a provision authorizing such a company which was the lessee of an interurban railroad to condemn a right of way for transmission lines between cities to convey electricity was held to be properly connected therewith, and within a title which only expressed that subject by stating that the act was “concerning street railroad companies [and] granting additional rights and powers.” Mull v. Indianapolis, etc., T. Co. (1907) 169 Ind. 214, 221, 81 N. E. 657.

The general subject of circuit courts was sufficiently expressed to authorize a provision for the specific matters enumerated as being “properly connected” with such subject, where the title was not in general terms, but was “an act to divide the state into circuits for judicial purposes, fixing the time of holding courts therein, abolishing the courts of common pleas, and transferring the business thereof to the circuit courts, and providing for the election of judges and prosecuting attorneys in certain cases.” State ex rel. v. Tucker (1874) 46 Ind. 355. And, where the general subject was protection against the sale of food that was not pure and wholesome, a provision making it a criminal offense to sell “milk which contains visible dirt” was “properly connected therewith,” so as to be embraced by a title not general in its terms, but which recited that it was “an act forbidding the manufacture, sale or offering for sale of any adulterated or misbranded foods or drugs, defining foods...