State ex rel. Nejdl v. Bowman

• Court: Indiana Supreme Court
• Writing for the Court: Travis, J.
• Citation: State ex rel. Nejdl v. Bowman, 199 Ind. 436, 156 N.E. 394 (Ind. 1927)
• Decision Date: 19 April 1927
• Docket Number: 25,353
• Parties: State of Indiana, ex rel. Nejdl v. Bowman, Auditor of State

156 N.E. 394

199 Ind. 436

State of Indiana, ex rel. Nejdl v. Bowman, Auditor of State

No. 25,353

Supreme Court of Indiana

April 19, 1927

Rehearing Denied August 5, 1927, Reported at: 199 Ind. 436 at 465.

1 STATUTES.---Amendatory act takes the place of the act amended.---Generally, an amendatory act or section of an act takes the place of and supersedes the act or section of the act which it amends. p. 443.

2. STATUTES.---Effect of amendment of statute by reenacting a statute with changes of the language thereof.---An amendment of a statute or section of an act by using the exact language of the amended act except as changed by the amendment abrogates the language of the original act which is supplanted by different words or language in the amendment, and all those provisions or words of the original act or section which are not repeated in the amended statute are abrogated, and are of no force or effect whatever. p 445.

3 STATUTES.---Valid law may go into effect although some of its provisions are not operative until later.---A law may be enacted and go into effect upon the proclamation of the Governor even though some provisions of the act are not to become operative until a future time or upon a stated contingency. p. 446.

4. STATUTES.---When laws go into effect.---Under the Constitution, a law takes effect from the time of its distribution throughout the state, except as otherwise provided by the Constitution, to wit, in emergency cases. p. 446.

5. STATUTES.---Law of 1881 fixing pay of members of legislature repealed by amendment of 1925.---Section 1 of the act of 1881 fixing the pay of the members of the legislature (Acts 1881 p. 517, 7561 Burns 1914), having been repealed by the amendment thereof in 1925 (Acts 1925 p. 284, 8080 Burns 1926) not to become effective as to such members until 1929, there was no law in force in 1927 providing for compensation for the members of the session of that year. p. 446.

6. STATUTES.---Act of 1927 fixing pay of members of the legislature at $10 per day is valid.---The act of the General Assembly of 1881 fixing the pay of members of the legislature at $6 per day (Acts 1881 p. 517, 7561 Burns 1914), having been supplanted by the amendatory act of 1925 (Acts 1925 p. 284, 8080 Burns 1926) not to become effective as to such members until 1929, there was no law in force fixing the compensation of members of the legislature of 1927, and the General Assembly had the authority, under 29 of Art. 4 of the Constitution, to fix such compensation, and 6 of the act of 1927 (Acts 1927 p. 1) fixing the pay of such members is valid and does not violate the provision of the Constitution prohibiting the legislature from increasing its own pay. p. 448.

7. STATUTES.---Act of 1927 fixing legislators' pay not contrary to public policy or against public interest.---The act of 1927 fixing the compensation of members of the legislature at $10 per day (Acts 1927 p. 1) is not invalid because of being contrary to public policy or against the public interest since compensation does not greatly exceed personal expenses of members during the session and is probably insufficient to pay expenses of their families at home. p. 466.

8. MANDAMUS.---Duty of auditor of state as to legislators' pay properly enforced by mandate.---The act of 1927 appropriating the expenses of the legislature and also fixing the legislators' pay clearly points out the duty of the auditor of state, and such duty was properly enforced by mandate and the fact that some one might attack law as unconstitutional did not justify auditor's refusal to perform legal duty. p. 467.

From Marion Superior Court (A 38,388); Joseph M. Milner, Judge.

Action of mandate on the relation of James J. Nejdl, State Senator, against Lewis S. Bowman, Auditor of State, to compel him to draw a warrant in favor of relator for his salary as a member of the state Senate in 1927. From a judgment for the defendant, the relator appeals.

Reversed.

Louis B. Ewbank and Rinier, Givan & Anderson, for appellant.

Arthur L. Gilliom, Attorney-General, for appellee.

Ralph K. Lowder, Amicus Curiae.

Travis, J. Gemmill, C. J. and Martin, J., concur. Myers and Willoughby, J. J. dissent.

OPINION

Travis, J.

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 § 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 November 4, 1924, to serve four years in the Senate as such senator from Lake county, Indiana; 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 January 6, 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 January 6, 1927, to January 18, 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 January 1, 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 service 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 members of the General Assembly shall receive for their services a compensation to be fixed by law; and that the statute which took effect January 17, 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 § 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 § 1, Art. 4, Constitution of Indiana, which provides, that the legislative authority of the state vests in the General Assembly; and (b) that § 1 of the act of the General Assembly passed by it in 1881, 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, ch. 109, p. 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 January 1, 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, (§ 28, Art. 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 special session in 1881, passed an act entitled, "An act concerning the General Assembly,...