State ex rel. Nejdl v. Bowman
| Decision Date | 19 April 1927 |
| Docket Number | No. 25353.,25353. |
| Citation | 199 Ind. 436,156 N.E. 394 |
| Parties | STATE ex rel. NEJDL v. BOWMAN, State Auditor. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; Jos. M. Milner, Judge.
Mandamus by the State, on the relation of James J. Nejdl, against Lewis S. Bowman, State Auditor, to compel him to draw a warrant in favor of relator for compensation for his services as state senator. Judgment for defendant, and relator appeals. Reversed and remanded, with directions.
Louis B. Ewbank and Rinier, Givan & Anderson, all of Indianapolis, for appellant.
Arthur L. Gilliom, Atty. Gen., for appellee.
This is an action to mandate the auditor of state to draw a warrant in favor of the relator for compensation for his services as a senator of the state of Indiana, acting as such in the regular session of the General Assembly of the state of Indiana in 1927, at the rate of $10 per day, to comply with section 6 of House Bill No. 1 passed over the veto of the Governor on January 17, 1927, and declaring an emergency. The action is declared in the complaint in two paragraphs, both of which aver that the relator was duly elected as a member of the General Assembly of the state of Indiana upon the 4th day of November, 1924, to serve four years in the Senate as such Senator from Lake county, Ind.; and that he was duly qualified and sworn as a member of said General Assembly, and that since said date he has continued to serve, and is now serving, as a member of said General Assembly at the session which commenced on the 6th day of January, 1927, and had served for twelve days during such session, and that this action is brought on his own behalf and on the behalf of all the other members of the General Assembly of both the Senate and House of Representatives who are in like circumstances as this relator. It is further averred that the Lieutenant Governor, as presiding officer, and the other qualified officers of the Senate of the state of Indiana, ordered and directed the defendant, as auditor of the state of Indiana, to draw a warrant in favor of the relator in the sum of $120 as compensation for twelve days' services rendered by him as such Senator and member of the General Assembly at the rate of $10 per day, to wit, from the 6th day of January, 1927, to the 18th day of January, 1927, and the relator had demanded of defendant as such auditor of state that he draw his warrant for said sum in favor of relator in payment for his services, which request defendant, as such auditor of state, refused, and still refuses, to do.
The first paragraph of complaint averred, in addition to the above, that prior to April 5, 1925, a statute had been in force which provided that pay of members of the General Assembly should be $6 per day while in actual attendance, but that on said date of April 25, 1925, an act took effect which expressly amended said prior act, so as to provide that from and after the 1st day of January, 1929, the pay of members of the General Assembly should be $10 per day while in actual attendance, but entirely omitted any provision whatever for the payment of compensation in any sum whatsoever to members of the General Assembly for attendance and services in 1927, or at any time before January 1, 1929, so that there was not, and had not been since April 25, 1925, any law whatever in force in Indiana which provided for payment to such members of any compensation whatever until such a law was enacted in 1927 as in the first paragraph of complaint before stated. It further averred that the Constitution of the state of Indiana provides that the General Assembly shall receive for their services a compensation to be fixed by law; and that the statute which took effect the 17th day of January, 1927, fixed the compensation of members of the General Assembly at $10 per day while in actual attendance; and that, since April 25, 1925, there has been no other law whatever providing for the payment of compensation to such members.
To this complaint defendant, the auditor of state, demurred upon the ground that the complaint does not state facts in either paragraph sufficient to state a cause of action. The trial court sustained the demurrer to the complaint, and, upon plaintiff's refusal to plead over or amend the complaint, the court rendered judgment that the plaintiff take nothing and the defendant recover his costs.
The sole error presented is predicated upon the court's ruling, which sustains appellee's demurrer to appellant's complaint and each paragraph thereof. The assignments of error present for decision the constitutionality of section 6 of House Bill No. 1, passed over the veto of the Governor on January 17, 1927. The propositions presented by appellant are: (a) That the Constitution does not forbid the Legislature in one session to repeal, or to amend, out of existence any provision of law enacted by such Legislature at any previous session; and applies the proposition to section 1, article 4, Constitution of Indiana, which provides that the legislative authority of the state vests in the General Assembly; and (b) that section 1 of the act of the General Assembly passed by it in 1881 (Acts Sp. Sess. 1881, c. 54), which fixed the compensation of members of the General Assembly at $6 per day, ceased to exist upon its amendment in 1925, except as in its amended form, as amended by the act passed in 1925 (Acts 1925, c. 109, page 284), and corollary thereto; (c) that the only law in force in January, 1927 (the act passed by the General Assembly in 1925, by which the compensation of the members of the General Assembly was fixed at $10 per day, from and after the 1st day of January, 1929), is the statute here in question, which provides that $10 per day be paid as compensation to the members of the General Assembly for the session of 1927; and that it does not increase the compensation as prohibited by the Constitution (section 29, article 4, Constitution of Indiana).
The acts of the General Assembly which fixed the compensation of its members are here set out in the chronological order of their passage by the General Assembly, beginning with the act approved April 21, 1881. The General Assembly in regular session in 1881 passed an act entitled “An act concerning the General Assembly, the business therein, and committees and clerks thereof” (approved April 21, 1881), the first section of which act only is applicable here, and is as follows:
Acts Sp. Sess., 1881, c. 54, p. 517.
The compensation of members of the General Assembly continued under the act passed in 1881 until 1925, which is admitted by both appellant and appellee, when at the regular session of the General Assembly it enacted the following law:
“An act to amend section 1 of an act entitled ‘An act concerning the General Assembly, the business therein, and committees and clerks thereof,’ approved April 21, 1881.
Section 1. Be it enacted by the General Assembly of the state of Indiana, That section 1 of the above entitled act be amended to read as follows: Section 1. That from and after the first day of January, 1929, the pay of the members of the General Assembly shall be ten dollars ($10) per day while in actual attendance, or absent by leave, or on business of the General Assembly, or unable to attend from sickness, and five dollars ($5) for every twenty-five miles they may travel from their usual places of residence to the seat of government and back: Provided, that when a special session is called to assemble on the day succeeding the expiration of any other session, no mileage shall be allowed members therefor. The Speaker of the House of Representatives and the Lieutenant Governor for acting as President of the Senate shall each receive compensation for his services at the rate of twelve dollars ($12) per day.” Acts 1925, c. 109, p. 284.
The pertinent parts of the statute, which contains section 6 now under review for construction, are as follows:
“An act to appropriate $100,000.00 to defray the expenses of the 75th General Assembly of the State of Indiana, providing how the expenses and employés thereof shall be incurred and paid, how the officers, employés and assistants thereof shall be selected, fixing the per diem and mileage of members of the General Assembly, repealing all laws in conflict therewith, and declaring an emergency.
Section 1. Be it enacted *** That the sum of $100,000.00 be and the same is hereby appropriated *** to defray the expenses of the 75th General Assembly of the state of Indiana. ***
Section 2. It shall be the duty of the auditor of state to audit the accounts and draw his warrants upon the treasurer of state for the per diem and mileage of Senators and Representatives *** upon the certificate, in the case of Senators, of the President of the Senate *** Setting forth the time of service and amount of mileage and allowance to which such Senators and Representatives may be entitled. ***
Section 6. That the pay of the members of the 75th General Assembly shall be ten dollars ($10.00) per day while in actual attendance, or absent by leave, or on business of the General Assembly or unable to attend from sickness, and five dollars ($5.00) for every twenty-five miles they may travel from their usual places of residence to the seat of government and back, and the Speaker of the House of Representatives and the Lieutenant Governor for...
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