Walsh v. State ex rel. Soules

• Decision Date: 22 June 1895
• Citation: 142 Ind. 357,41 N.E. 65
• Parties: WALSH, County Treasurer, et al. v. STATE ex rel. SOULES, County Auditor.
• Court: Indiana Supreme Court

142 Ind. 357

41 N.E. 65

WALSH, County Treasurer, et al.

v. STATE ex rel.SOULES, County Auditor.¹

Supreme Court of Indiana.

June 22, 1895.

Appeal from circuit court, Vigo county; D. N. Taylor, Judge.

Action by the state on the relation of James Soules, auditor of Vigo county, against John L. Walsh, county treasurer of Vigo county, and others on the treasurer's bond. A demurrer to the complaint was overruled, and defendants appeal. Affirmed.

McCabe and Hackney, JJ., dissenting.

Lamb & Beasley and John R. Wilson, for appellants. W. A. Ketcham and Saml. M. Huston, for appellee.

JORDAN, J.

This action was commenced by the state in the lower court on the relation of the auditor against the appellant, Walsh, treasurer of Vigo county, and his coappellants, who are sureties upon his official bond. The breach of the bond, as alleged in the complaint, was the failure of said appellant, as such treasurer, to pay over certain moneys, and a conversion of the same to his own use, upon the claim and contention that under the provisions of the act of 1879 (Acts 1879, p. 130) he was entitled to receive and retain for his own use, as compensation, 1 per cent. upon the first $100,000 of taxes collected by him, and one-half of 1 per cent. upon the residue collected in excess of $100,000, and in addition thereto 6 per cent. upon all delinquent taxes collected by him, as provided by section 30 of the act of 1879. Appellants unsuccessfully demurred to the complaint, upon the ground that the same did not state facts sufficient to constitute a cause of action, and the decision of the court in overruling the demurrer is the only error assigned. The gist of the contention of appellants' learned counsel is that, inasmuch as the salary provisions as fixed by the act of 1891 (Acts 1891, p. 424) have been declared unconstitutional by this court in the case of State v. Boice, 39 N. E. 64, these are thereby eliminated from that act; that this being true, the only remaining provisions of the law of 1891 in respect to the treasurers' compensation are the fees provided and allowed by sections 120 and 122, and hence it is contended that as this act now stands, since the decision of this court in the Boice Case, supra, there is no conflict in regard to the compensation of county treasurers between it and the act of 1879, and that therefore this last act, in this respect, is not repealed by the former, and consequently appellant Walsh is entitled to the compensation and fees allowed by the provisions of the act of 1879. In the case of Henderson v. State (Ind. Sup.) 36 N. E. 257, the principal features and scope of the law of 1891 were by a majority of this court at the time held to be constitutional and a valid exercise of legislative power. While, in the judgment of the writer of the opinion in the case at bar, speaking individually for himself, and not for the court, the result reached in case last cited may be in some respects questionable, however, that decision, and also the one of State v. Krost (Ind. Sup.) 39 N. E. 46, are still adhered to and approved by a majority of the members of this court, as now constituted, and the questions therein involved and decided must be deemed and held, at least so far as the act of 1891 is concerned, as settled. In the case of the State v. Boice, supra, it was held by this court that by reason of the fact that the fee and salary law of 1891 in section 93 omitted to provide salaries for certain officers of Shelby county, that of treasurer being among the number, it was unconstitutional, upon the grounds that the act was thereby in conflict with article 4, § 22, of the state constitution, prohibiting local laws except those which grade the compensation of officers in proportion to population and the services required, and also that it was in conflict with article 4, § 23, by reason that it was not of a general and uniform operation throughout the state.

At the very threshold of the consideration of the cardinal questions involved in this appeal we are confronted by the proposition, or rather request, upon the part of the state's able and learned attorney general, to consider the validity and effect of the legislative act approved February 25, 1893 (Acts 1893, p. 142), amending section 93 of the statute of 1891, which amendatory act supplied the omissions of the section as it was originally enacted by providing compensation for the auditor, treasurer, and recorder of Shelby county. His contention is that this amendment was a valid exercise of power upon the part of the legislature, and that thereby the objectionable features of the statute, and its constitutional infirmities as adjudged to have existed against it in the case of State v. Boice, were eliminated by supplying the provisions which made the law in question conform to the requirements of the constitution, and that thereby its invalidity was cured, and the salary provisions thereof, as a whole, rendered operative in the future. This is an important question, under this contention, for the determination of this court. We have given this question such consideration and deliberation as time would permit, and have arrived at the conclusion that this contention of the attorney general must be sustained, and is decisive in this appeal. It appears from the facts alleged in the complaint that appellant, Walsh, was elected treasurer of Vigo county in 1892, and that his official term began, and he assumed the duties of his office, on August 22, 1893. The laws of 1893, and along with them the amendatory act in controversy, went into force and effect May 18, 1893, and hence, if this act resulted in curing the constitutional infirmities that existed against the statute of 1891, its effect, or results, are applicable to and controlling in the case now before us; for, as heretofore stated, appellant was elected after the taking effect of the law of 1891, and also went into office subsequent to the taking effect of the amendatory act in controversy. Section 93, as it appears from the printed acts to have been originally adopted, is as follows: “Sec. 93. In the county of Shelby the annual salary of the clerk of the circuit court shall be twenty-three hundred and fifty dollars, and of the sheriff twenty hundred and fifty dollars.” The act of 1893 by which this section was amended was entitled, “An act to amend section 93, of an act fixing the compensation, prescribing the duties of certain state and county officers, and providing penalties for the violation of its provisions, approved March 9th, 1891,” and is as follows: “Section 1. Be it enacted by the general assembly of the state of Indiana, that section 93 of the above entitled act be and the same is hereby amended so as to read as follows: Sec. 93. In the county of Shelby the annual salary of the clerk of the circuit court shall be twenty-three hundred (2,300) dollars, of the auditor twenty-five hundred and fifty (2,550) dollars, of the recorder thirteen hundred (1,300) dollars, of the treasurer twenty hundred and fifty (2,050) dollars, and of the sheriff twenty hundred and fifty (2,050) dollars.” It is evident and undisputed that where a statute or any part thereof is invalid by reason of an absence of power in the legislature, in the first instance, under the constitution, to enact the law, it would not be possible for that body to confirm or render the same valid by amendment. But where the obnoxious features of the statute may be removed, or essential ones supplied by a proper amendment, so that it can be held that, had the law been primarily so molded or framed under its title and within its scope as it has been by the amendment thereto, it would have been free of the objections existing against it as it originally stood, and also within the power of the legislature to enact it, then, and in that event, the statute may be rendered valid by amendment, so far as its future operations may extend. See State v. City of Cincinnati (Ohio Sup.) 40 N. E. 508. The act of 1891, it must be remembered, was not held to be invalid as an entirety, but only as to a part of its salary provisions. The act of 1893 does not attempt or profess to amend the entire act of 1891; it only supplied certain provisions in which section 93 was deficient. This section, as we have seen, made provisions alone for the compensation of the clerk and sheriff of Shelby county, and to this extent it was constitutional, under the decision of Henderson v. State, supra. Being constitutional, then so far as it concerned the salaries of the clerk and sheriff it was subject to amendment in like manner as sections of other statutes. The only limitation placed upon the legislature was not to extend it by the amendment beyond the subject of the original act and matters properly connected therewith. Suth. St. Const. § 132. Strictly speaking, an amendatory act is not regarded as an independent statute, and it may be framed so as to amend certain parts of the law and to add such supplementary sections as might be embraced under the title of the original act. State v. Bowers, 14 Ind. 195;Brandon v. State, 16 Ind. 197;Shoemaker v. Smith, 37 Ind. 122.

It is firmly settled that where a section in an existing law is amended in the mode prescribed by the constitution it ceases to exist, and the section as amended supersedes the original and becomes incorporated in and...