State ex rel. Shea v. Billheimer

• Decision Date: 15 December 1911
• Docket Number: 21,612
• Citation: 96 N.E. 801,178 Ind. 83
• Parties: State of Indiana, ex rel. Shea, v. Billheimer, Auditor of State
• Court: Indiana Supreme Court

96 N.E. 801

178 Ind. 83

State of Indiana, ex rel. Shea, v. Billheimer, Auditor of State

No. 21,612

Supreme Court of Indiana

December 15, 1911

Rehearing Denied June 6, 1912.

From Superior Court of Marion County (73,693); Vinson Carter Judge.

Action by the State of Indiana, on the relation of Joseph H. Shea against John C. Billheimer, Auditor of the State of Indiana. From a judgment for defendant, the relator appeals.

Affirmed.

Bernard Korbly and Willard New, for appellant.

James Bingham, W. H. Thompson, E. M. White and A. G. Cavins, for appellee.

Morris C. J.

OPINION

Per Curiam.

The controlling question in this case is whether the act of March 11, 1903 (Acts 1903 p. 524, § 1656 Burns 1908), giving an additional compensation of $ 300 per annum to judges who have more than one county in their circuits was repealed by the act of March 8, 1907 (Acts 1907 p. 182, § 1651 Burns 1908.)

Section 1 of the act of 1893 (Acts 1893 p. 341), as amended in 1895 (Acts 1895 p. 163, § 1652 Burns 1908), fixed the salaries of the judges of the circuit and superior courts at $ 2,500 each, but permitted the boards of county commissioners in certain counties under certain conditions to allow an additional sum as an increase of salary, and under § 2 of said act (§ 1653 Burns 1908) the same was to be paid out of the treasury of said county.

Section 3 of the act of 1899 (Acts 1899 p. 91, § 1654 Burns 1908) authorized boards of county commissioners in all judicial circuits composed of three or more counties to allow a sum "in addition to or increase of the annual salary of such judge, the same to be paid out of the treasury of such county, provided that the salary of any circuit judge shall not be increased over $ 500 under the provisions of this act."

Sections 1-5 of the act of 1899 (Acts of 1899 p. 374, §§ 1439c-1439g Burns 1901) provide for a sliding scale of compensation for circuit and superior court judges, depending on population and taxable property, to be paid out of the state treasury, not to exceed $ 3,000 per annum.

The act of 1903, supra, including the title, reads as follows: "An Act concerning the compensation of Judges of Circuit and Superior Courts in certain cases. Section 1. * * * That there shall be allowed to the judge of each circuit, and to the judge of each superior court district, containing more than one county, in addition to the salary now provided by law, the sum of three hundred dollars per annum, which allowance shall be added to the salary of such judge in lieu of traveling expenses."

The act of 1907, supra, including the title, reads as follows: "An Act fixing the compensation to be paid out of the state treasury as salary to the judges of the circuit and superior courts of the State of Indiana, and declaring an emergency. Section 1. * * * That there shall be paid to each of the circuit and superior judges of this state, as salary from the state, annually, the sum of three thousand five hundred dollars ($ 3,500), payable quarterly from the state treasury out of any money not otherwise appropriated: Provided, however, That this act shall not be construed to repeal any laws or parts of laws now in force, authorizing boards of county commissioners in certain counties to make additional allowances to the judges in such counties, but no other or different salary allowance shall be made or paid by the state."

It is contended by appellee that the $ 300 allowed by said act of 1903, payable out of the state treasury to judges whose circuits were composed of more than one county, "in lieu of traveling expenses," was an addition to their salaries and constituted a part thereof; that as the act of 1907, supra, fixes the salaries of circuit judges at $ 3,500, and provides that "no other * * * salary allowance shall be made or paid by the state", it repeals said act of 1903 which gives $ 300 as a part of the salary of such judges, because said act of 1907 covers the entire subject-matter of said act of 1903. If this contention is correct, the judgment must be affirmed.

The relator contends "that the $ 300 allowed by said act of 1903 was not intended by the legislature as salary, but was intended to cover traveling expenses of each judge who had to travel from one county to another to attend court in his circuit, and that therefore said act was not repealed by said act of 1907."

It is evident from the language of said act of 1907 and the express exclusion from repeal of laws authorizing boards of commissioners in certain counties to make additional allowances to the judges in such counties as an addition to or increase of the annual salary of such judges, and the express provision that "no other or different salary allowance shall be made or paid by the state", that the legislature intended to repeal all former laws relating to the subject-matter of said act, except as therein expressly provided. Does said act of 1907 repeal the act of 1903? The last-mentioned act provides that said $ 300 allowed thereby is "in addition to the salary now provided by law". The addition must therefore be of the same nature as that to which it is added, that is salary. Said addition is not made as traveling expenses, but "shall be added to the salary in lieu of traveling expenses". These terms clearly indicate that the legislature thereby intended to give an increase of salary to judges having more than one county in their circuits.

In People, ex rel., v. Wemple (1889), 115 N.Y. 302, 22 N.E. 272, an act provided certain justices of the supreme court should receive $ 1,200 annually in lieu of expenses, it was held to be a "clear grant of pay, or compensation, having no connection with expenses incurred by a justice. As granted by this act, it became, naturally and plainly, as much a part of the compensation to the justice as though his salary, eo nomine, had been increased to compensate him further for what his office entailed upon him in the way of duties and work. Expenses or no expenses, he became entitled to the whole of the $ 1,200." So under said act of 1903 each of the judges coming within the provisions thereof was entitled to the whole of the $ 300 traveling expenses or no traveling expenses.

The relator contends, however, that to hold that said allowance of $ 300 was intended as salary would render the act of 1903 local or special, in violation of article 4, § 22, of the State Constitution, which reads as follows: "The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * 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." (Our italics.) That, therefore, if this act is susceptible of two constructions, one of which will render it obnoxious to the Constitution and one will not, the court must adopt that construction which will uphold the law.

Said act of 1903 if given the construction contended for by the relator would be unconstitutional, because so construed it would be in violation of article 4, § 22, supra. Said act is by its terms an act for the compensation of the judges coming within its provisions, and its title limits said act to compensation of said judges.

Said act does not give all the judges of the same kind in the State said compensation. Therefore to be valid it must grade said "compensation * * * in proportion to population and necessary services required." Said act, if construed as contended for by relator, would grade the compensation, not in proportion to population and necessary services required, but only on the basis of traveling expenses, and this, said section of the Constitution does not authorize.

If relator's contention is correct, that said act is unconstitutional, if a salary act, then all the acts authorizing boards of county commissioners to increase the salaries of judges, paying such increase out of the county treasury, are unconstitutional for the same reason.

The part of article 4, § 22, of the State Constitution in italics was added thereto by an amendment made in 1881. Before said amendment this court held in State, ex rel., v. Reitz (1878), 62 Ind. 159, and in Hanlon v. Board, etc. (1876), 53 Ind. 123, that a law providing for the compensation of public officers according to population was a general and not a local or special law, and was valid. Legler v. Paine (1897), 147 Ind. 181, 192, 193, 45 N.E. 604.

When the legislature enacts a salary law, which does not give all the officers of the same kind the same salary, the presumption is, if necessary to the constitutionality of such act, that the legislature has "graded the compensation" of such officers in proportion to "the population and the necessary services required." Every presumption is indulged in favor of the constitutionality of a law, and it is only when it is made to appear beyond a reasonable doubt that it violates some provision of the Constitution that the court can declare it void. Jamieson v. Indiana, etc., Oil Co. (1891), 128 Ind. 555, 28 N.E. 76, 12 L. R. A. 652; Citizens St. R. Co. v. Haugh (1895), 142 Ind. 254, 258, 41 N.E. 533; State v. Gerhardt (1896), 145 Ind. 439, 44 N.E. 469, 33 L. R. A. 313.

It cannot be said that the salary, if it be a salary, provided by the act of 1903, supra, is not graded in proportion to the population and the necessary business required, merely because it only applies to judges of circuits and districts containing more than one county.

Whether the compensation provided by law is in proportion to population and necessary services is a legislative question and such determination by that body cannot be set aside by the court, unless it is apparent that there is a gross...